House of Lords
Wednesday 9 March 2016
Prayers—read by the Lord Bishop of Durham.
Retirement of a Member: Lord Vincent of Coleshill
My Lords, I should like to notify the House of the retirement, with effect from today, of the noble and gallant Lord, Lord Vincent of Coleshill, pursuant to Section 1 of the House of Lords Reform Act 2014. On behalf of the House, I should like to thank the noble and gallant Lord for his much-valued service to the House.
My Lords, the UK’s £427 million response was fundamental to combating Ebola and saving countless lives. We are committed to learning lessons and responding effectively to future crises, and made a critical contribution to better understanding community engagement. Many UK nationals worked bravely alongside Sierra Leonean communities and health workers, and I pay tribute to their phenomenal work. Part of our £240 million economic recovery programme will help strengthen local health systems, and help communities to hold government to account.
My Lords, I am grateful to the noble Baroness for her reply and for her consideration of the report of the All-Party Parliamentary Group on Africa on lessons to be learned from the Ebola crisis, which will be launched publicly later today. Can she confirm that the Government accept the key finding of this far-reaching study: that, in order to ensure preparedness for future health crises in Africa, health systems should be developed horizontally, local leadership prioritised and investment concentrated at community level? Will the Government regularly monitor DfID’s health development programmes to ensure that they recognise and respond to these findings?
My Lords, I thank the noble Lord and the APPG for the useful and timely report, which draws attention to the importance of communities’ role in ownership and in delivering in crises. We agree that engaging with communities in the delivery of public health systems is essential. To provide stronger, people-centred health services that reflect their needs, we are looking at lessons learned from the crisis, and very much looking at the recommendations of the noble Lord’s report.
My Lords, will the Government acknowledge that, prior to the Ebola crisis in Sierra Leone, they were planning to cut support for health systems in that country? As the Minister said, they subsequently spent nearly £500 million tackling the crisis. Does she accept that if we are to have health systems fit for the future, we must maintain long-term commitments? Can we be satisfied that the Government have reviewed their policy, given the cutbacks that have been applied in sub-Saharan Africa in order to support the Syrian refugee crisis?
My Lords, as the noble Lord knows, we are currently undergoing bilateral and multilateral reviews. We will learn from that process where our future funding will go. To take the noble Lord’s point about concentrating on fragile countries, a number of the countries to which the noble Lord referred will be among the 50% that we are targeting in our support for conflict-ridden and fragile states.
My Lords, the noble Baroness raises an important point about causes, but these are lessons that we will learn as we review all the work that we ourselves, other agencies and the Sierra Leone Government have done. We are also undertaking a lot of research in this area, so I thank the noble Baroness for her question.
My Lords, I saw for myself at the height of the Ebola crisis last year and again on the return visit to the Parliament in Sierra Leone last month the value that communities there put on the work of the Minister’s department, the Foreign Office, NHS volunteers and international development agencies. One thing that they did not value was the suspension of direct flights to west Africa. Could the Minister look very carefully at that decision and not have a knee-jerk reaction in future? It did not stop people travelling from west Africa—it just made life a lot more difficult for volunteers and those going out and actually impeded public health screening, because people came back through a variety of routes rather than direct routes.
My Lords, is the Minister aware of the criticism that has been made by Save the Children of the UK’s NHS employment of 27 Sierra Leonean doctors and 103 nurses, which amounts to a subsidy to the UK of £22 million? Will the Government review the practice of using migrant nurses in the NHS?
As the noble Baroness will of course be aware, it is important that during the crisis we draw on the expertise of all volunteers and experts. We were very fortunate to have volunteers from the UK go out, but we also very much drew on local communities and are now building up their local capacities.
My Lords, does my noble friend agree that something that we can do from this country is harness the extraordinary strength of our scientific base, particularly with respect to tropical diseases—in particular, insect-borne diseases such as malaria and Zika, which also threaten people’s livelihoods?
My Lords, just to pick up on the point made by my noble friend, one problem is that there is no postgraduate training for those who want to specialise in the healthcare system in Sierra Leone to build a sustainable and resilient system. I have asked this question before, but the Minister did not respond directly to it. What steps are the Government taking, and DfID in particular, to support the royal colleges in ensuring that there is in-country professional development for healthcare workers?
My Lords, I am sorry if the noble Lord thinks that I did not respond, so I shall try again this time. We are supporting the strengthening of healthcare systems in Sierra Leone and other places. In Sierra Leone in particular we are investing £37 million to strengthen President Koroma’s recovery plan, which will help build up the strength and capacity of local health workers—and, of course, will look at patient safety.
My Lords, I understand that it is possible that Ebola will become endemic in some of the populations that have been affected in the recent crisis. Can the Minister tell us what assistance is being given to these countries to monitor their people and make sure that we do not have such a huge epidemic as we had before?
My Lords, I am pleased to say that so far we are now looking towards 16 March as being the zero-plus-42 days since the last outbreak of Ebola, but we continue to monitor. Sierra Leone has active surveillance activities. Throughout the communities, health workers, health facilities and community surveillance programmes are continuing, even though we are coming to a zero point.
Schools: Admissions Code
My Lords, we want the schools adjudicator to focus on concerns that parents might have about the admission arrangements of their local school. We also want to free schools from bureaucracy so that they can focus on delivering excellent education. We propose that only local parents and local authorities be able to refer objections about a school’s admissions arrangements. That change will be subject to full public consultation and parliamentary approval.
I thank the noble Baroness for that reply. Given that the schools adjudicator’s most recent report highlighted that violations of the school admissions code were widespread, noble Lords may not regard it as a coincidence that there is currently no body charged with enforcing and monitoring that code. Does the noble Baroness agree that the establishment of an independent body with responsibility for enforcement of the code is overdue? If that were done, there might be less concern about the banning of organisations that can raise questions.
We want to put parental concerns at the heart of the system, which is why we want the adjudicator to focus on those concerns. It is not great for parents that it now takes 49 days for them to hear the result of their objection; that has risen from 26 days. We want the schools adjudicator—she herself has suggested it—to limit those who can make an objection, to put parents at the centre.
My Lords, I thank the Minister for saying in response to the earlier question that parents will be at the heart of school admissions policy because, in her latest report, the Chief Schools Adjudicator states that:
“Admission arrangements for too many schools that are their own admission authority”—
that is, academies—
“are unnecessarily complex. The arrangements appear to be more likely to enable the school to choose which children to admit”.
What action is the Minister proposing to ensure fair access for all children?
The schools admission system is working well. Last year, the adjudicator received 218 objections, but they related to just 1.1% of schools. Of course it is right that parents can raise their objections when they need to, which is why we also propose to give them a greater voice by requiring admissions authorities to consult on their arrangements every four years rather than every seven years as currently.
My Lords, I understand that there is to be a consultation on a package of changes to the schools admissions code and that there will be measures on fairness and transparency. Will the Minister define what the Government actually mean about fairness and transparency?
Schools obviously have to publish their admissions codes. It is most important that parents understand what they are and what they mean so that, if they want to send their child to a school, they understand the criteria on which it will judge. We want to put parents at the heart of this, which is why we propose to make sure that their concerns are raised by the adjudicator and can be looked at in a timely fashion. We also want to make sure that schools explain their admissions policies clearly so that parents can try to get their children to the schools they want.
My Lords, we now have reliable information that virtually all religiously selective schools breach the schools admissions code, some in a very serious way. Does the Minister agree that serious breaches of the code are thoroughly unacceptable? Will Ministers agree to meet the British Humanist Association and the Fair Admissions Campaign to discuss the importance of having some informed organisation, whatever that might be, to make sure that the authorities are aware when breaches occur?
It is certainly true that, if any school is breaching the admissions code, that cannot be acceptable. The noble Baroness refers to faith schools in particular, but actually a lot of the issues raised in the report An Unholy Mess, which I think she is referring to, were related not to faith but to other issues such as banding, sixth-form admissions arrangements and the use of incorrect definitions. Still, schools of course have to get their admissions codes right, which is why we want to put parents’ concerns at the heart of the process and ensure that admissions codes are clear for all parents.
My Lords, we know that some campaign groups are actually targeting faith-based schools as part of a broader agenda. How many of the upheld objections were unrelated to religious selection criteria, and how many were upheld on minor administrative infringements? Are the significant time and resources used to respond to such objections justified in the light of those numbers?
As I said in my previous answer, many of the faults that were found related not to faith but to other issues. Church and faith schools make a significant contribution to our education system: 87% of faith schools are good or outstanding, compared with 82% of non-faith schools. Of course schools have to abide by the correct codes, but it is important to recognise the value that these schools add to our education system.
Your Lordships are very generous to a newcomer; thank you. As we have heard, church schools have been the subject of many vexatious attempts to take them to the admissions adjudicator. I ask the Minister to condemn those who abuse the school admissions code to make political and ideological points. I declare an interest as a parent with a son at a Catholic school. I also invite the Minister to pay tribute to the many excellent church schools, which not only are more ethnically diverse than average schools but are more likely to have a good or outstanding judgment from Ofsted.
The noble Baroness can answer the question for me if she likes. As I said, we want to ensure that parents are at the heart of this process, which is why we want to ensure that adjudications are not held up by the need to consider large numbers of objections referred by interest groups. Unfortunately, because of some campaigns, parents now have to wait longer for the outcome of their appeals, and that cannot be right.
Adult Education: Part-time Attendance
The department does not record the employment status of those in part-time, further and higher education. However, this Government are committed to providing learning opportunities to those of all ages and circumstances. Advanced learner loans are now available for adults who wish to retrain and study for a new career. We have been taking steps to address the decline in part-time higher education by introducing a new maintenance package. Apprenticeships allow individuals to train while progressing their careers, and we are aiming for 3 million more apprenticeship starts by 2020.
I am grateful for that Answer, although I think it would be appropriate for the Government to count the number of part-time students. Many noble Lords in this Chamber will remember the days when night school was a major instrument of social mobility, yet today night school has almost disappeared and the number of adults on part-time courses has plummeted. What can the Government do to increase the availability of part-time HE and FE courses, including night school, and to encourage people in work to better themselves in this old-fashioned but tried and trusted way?
This Government are taking a number of steps to help to encourage part-time learning. For instance, we will be introducing maintenance loans for part-time students for the first time, and we have expanded second degree student support funding for those who want to study a STEM subject. We have also expanded the advanced learner loan system, so from 2016-17 learners aged 19 and over studying at levels 3 to 6 will be able to access that support. We are doing what we can to provide people who want to study part-time with the support to do so.
I thought that there could not be a worse Government than this Tory one for butchering further education until I looked at Scotland, where there are now 150,000 fewer places in FE than there were when the SNP took over. Are the Tories and the SNP in some kind of Dutch auction to see who can reduce further education places to their lowest number?
I am very pleased to reassure the noble Lord that in fact, under this Government in the last spending review, we have protected FE budgets at £1.5 billion over the course of the Parliament. Therefore I am sure that the noble Lord will recognise how much the Government are doing to support FE and will want to congratulate us on doing so.
My Lords, does my noble friend recall that the committee on the digital economy of this House recommended shorter courses, of five weeks or so, and bang-up-to-date courses so that people being encouraged to do part-time courses would be given something that employers value?
I congratulate the noble Lord and the committee on their report. As I said, we want to encourage people to undertake part-time study if that is what they want to do, and of course we are working with employers and colleges to try to ensure that we have a flexible system that everyone can take advantage of.
My Lords, two of the main providers of higher education for part-time students are the Open University and Birkbeck College, both of which do exceptionally well. Have the Government carried out any consultation with them about the impact of the new fees regime on applications for such courses?
I also congratulate those two organisations on their work—in fact, I met both of them recently. The Government are certainly listening to their concerns. Part of the reason we are consulting on the introduction of maintenance loans is because we want to make sure that we get the details right and ensure that those who want to take advantage of this support can do so.
We want people to be able to access higher and further education in whatever way they think is best; night schools are one way to do that. Therefore, in order to provide flexibility for people who want to do further studies, there should be a whole range of provision so that people from all backgrounds and ages can access the support that suits them best.
My Lords, it is the turn of my noble friend Lady Sharples, then I am sure we will go next to the Labour Benches.
We are encouraging a whole range of ways in which people can access further education. For instance, increasing numbers of people take higher and degree apprenticeships—that is in fact one of the fastest-growing elements of the programme—so we are offering a whole array of ways in which people can retrain and study further.
Is the Minister aware that one of the main factors that inhibit those applying for part-time retraining in different areas is what is called the ELQ rule—in other words, where they already have a qualification they cannot take another one at the same level? Does the Minister have any proposals for easing that? It has already been done for the STEM subjects but it would be a good idea to ease it up for other areas so that people can retrain, even if at the same level.
I am happy to say that we have expanded the number of courses where you can get second degree student support so that now people wanting to take subjects allied to medicine, biological and veterinary sciences, agriculture and related sciences, and physical and mathematical sciences can access that support.
With respect to further education —I declare an interest as someone who did three nights a week on day release at one point—would it not be a good idea that, instead of stuffing this place with chancellors of universities of higher education, we put some people with direct knowledge of further education in here?
Turkey: Zaman Newspaper
My Lords, we regularly underline the importance of freedom of expression and all fundamental freedoms as part of our dialogue with the Turkish Government. On Monday, the Prime Minister raised concerns about press freedoms with Turkey’s Prime Minister, Ahmet Davutoglu, underlining the importance of protections for a free press and human rights in Turkey. As a friend and ally, we urge the Turkish Government to uphold the right of media to operate without restriction.
I have been a committed friend of Turkey for 40 years or so, but I now see a country where journalists are imprisoned, the media are persecuted, the Constitutional Court’s rulings are openly criticised by the President, and the main opposition newspaper is seized. Dissent and disagreement are seen as crimes, human rights violations are widespread, and it all seems to be getting worse. Does the Minister think that Turkey can be trusted to respect the human rights of all the refugees, including Kurds, who are to be returned to its care under the EU plan?
My Lords, I stress that the EU plan has not yet been finalised. It was raised in the margins of the summit and indeed after the summit had formally concluded. President Tusk will, within 10 days, be concluding what the agreement looks like. However, the noble Lord makes a very valid point, whatever agreement may or may not be reached. The answer to it is that Turkey has already shown extraordinary generosity in hosting 2.6 million refugees from Syria and another 600,000 from other countries. It has already shown that it can be trusted to deliver a change of legislation whereby those refugees are able to work in Turkey, and during the next school year every Syrian child will be able to get access to education. We will hold it to any agreements.
My Lords, I am sure that two distinguished Members of this House can, between them, decide whom to give way to.
My Lords, the noble and learned Lord refers to one of the issues that was under discussion after the summit had concluded its official session on Monday. The question of whether visa restrictions will be lifted within the Schengen area is now being considered and a proposal will be brought forward at the next European Council meeting, which I believe will be on 16 or 17 March. I repeat that that is for the Schengen area only and not for here, and therefore I suggest that it is a little premature to try to estimate how many Turks will avail themselves of it.
My Lords, will my noble friend, through the Prime Minister, tell the German Chancellor and others that it is completely unacceptable and utterly bonkers to think that it is appropriate to export back to Turkey migrants who have come to Europe in return for Turkey being able to send people to this country?
My Lords, the proposal itself is welcome in that, in outline as it stands, it would break the business model enjoyed by the most evil people that I can think of beyond Daesh—the human traffickers who make people’s lives a misery by promising a life in Europe as the automatic result of getting on a leaky boat in the Mediterranean and risking their life, along with the lives of their children. I absolutely understand my noble friend’s point and I assure him that the Prime Minister will bear in mind the concerns that underlie his question.
My Lords, does not the Minister agree that the best way of bringing effective and continuing pressure on the Turkish Government over matters of press freedom and human rights is to open some new chapters in their accession negotiations, which would provide real leverage on Turkey? The failure to do so has meant that the EU’s leverage has been very weak in recent years.
The noble Lord makes a very strong point. The 35 chapters of the accession negotiations were opened in 2005, and progress through them has indeed been taking some time. It is a matter of further discussion whether and how further chapters might be opened. Clearly, requests are being made by Turkey, but the noble Lord’s point is right: it provides leverage.
My Lords, in the light of the opening of these chapters and the negotiations that will flow from that, will the issues of press freedom, freedom of speech and human rights be part of those discussions? Turkey is in a very difficult and volatile situation, given the war and all those refugees on its doorstep. I ask for an assurance that that is not lost in the European Union’s keenness to keep all the refugees in Turkey.
No, my Lords. Human rights underpin all the work of the Foreign and Commonwealth Office, as I made clear when I appeared before the Foreign Affairs Committee of another place recently. We will never hold back from speaking out or from holding people to account on the important issues of the Copenhagen agreement, whereby democracy and the rule of law underpin everything.
Electricity Supplier Payments (Amendment) Regulations 2016
Motion to Approve
Report (1st Day)
Clause 1: Director of Labour Market Enforcement
1: Clause 1, page 2, line 5, after “allowances” insert “, and
(b) pay or make provision for the payment of such pension to or in respect of the Director,”
My Lords, as this is the first day of Report, I will put some general comments on the record. I thank all noble Lords for their engagement with officials over the period between Committee and Report. We have had eight all-interested Peers meetings, numerous bilateral meetings and significant engagements. We even had some external visits. As a result of all that, I have written a number of letters, including to the noble Lord, Lord Rosser, and to others, that even St Paul would be proud of. As a result of listening to the points and concerns that were raised by noble Lords from all sides of the House in Committee, as well as before then, we have a number of new proposals that I believe will go a long way to addressing those. In fact, ahead of Report, we tabled more than 100 government amendments to the Bill and tried to expand on, through a number of letters, the implications of what is being proposed.
I wanted to preface my remarks on this group of amendments by putting on record my thanks to all noble Lords for their engagement with the process. We hope that we have made progress which proves acceptable to your Lordships.
I want to draw your Lordships’ attention to two key issues in the Government’s amendments in this group: first, the Director of Labour Market Enforcement’s intelligence hub and, secondly, changes in light of recommendations from the Delegated Powers and Regulatory Reform Committee.
Clause 6 requires the director to gather, store, process, analyse and disseminate information relating to non-compliance in the labour market. This enables the director to produce an evidence-based annual strategy. Our amendments will enable this through operating an effective intelligence hub.
The enforcement bodies covered by the strategy are the Employment Agency Standards Inspectorate, HMRC’s national minimum wage team and the Gangmasters and Labour Abuse Authority. They will supply the majority of information and intelligence for the director’s work. Amendment 2 requires the director to include information-sharing matters in the annual strategy; for example, frequency of provision of information. Amendment 10 allows the director to request information from those bodies, and vice versa, throughout the year. Other bodies may also hold intelligence useful for the strategy. Amendment 8 allows anyone to share information with the director or staff in the intelligence hub where it relates to the director’s functions. The amendment also enables the director and intelligence hub staff to share information with specific named persons, listed in a new schedule inserted by Amendment 11, if relevant to the functions of those persons. There is a power to add to the list by regulations through the affirmative procedure. We are committed to data security. Amendment 9 sets out restrictions to ensure the information is used and shared appropriately. This contains specific provisions for the intelligence services and HMRC.
It is vital that the three labour market enforcement bodies have gateways allowing them to share information with other enforcement bodies. Amendment 29 will allow the Employment Agency Standards Inspectorate to share information with the Employment Agency Inspectorate in Northern Ireland, the Pensions Regulator and the Care Quality Commission, enabling collaboration across organisations. We want the GLAA to have the necessary gateways to share information relating to its new role. Amendment 32 therefore enables it to share information encompassing all labour market enforcement functions within the director’s remit and LME undertakings and orders. Reflecting the GLAA’s new role enforcing modern slavery offences, Amendment 38 inserts a new section into the Modern Slavery Act 2015 allowing disclosure of information to the GLAA from specified persons, and vice versa. A new schedule in the Modern Slavery Act 2015 will list those specified persons. There will be a power to add to this list, subject to the affirmative procedure. Other amendments allow the GLAA, HMRC’s NMW team and the EAS to share information relating to the new LME undertakings and orders in this Bill.
The next amendments are those that address specifically concerns raised by the Delegated Powers and Regulatory Reform Committee report, for which we were very grateful, and its concerns particularly about some powers in Chapter 1. We are happy to accept its recommendations. Amendment 13 therefore makes the power to extend the purposes for which officers of the GLAA can be given PACE powers subject to the affirmative, rather than negative, procedure and thus to rigorous parliamentary scrutiny. The committee’s second recommendation concerned the new LME undertakings and orders. Amendments 26 and 27 provide that the code of practice governing their use by enforcement bodies will be subject to parliamentary oversight by being brought into force by a statutory instrument subject to the negative procedure. The committee’s third recommendation related to the GLAA’s licensing rules. Amendments 31 and 33 maintain the introduction of licensing rules by statutory instrument and not simply by publication, but with the added requirement of approval by the Home Secretary.
As the GLAA’s expanded role under the Gangmasters (Licensing) Act 2004 applies only in Great Britain, Amendments 36 to 38 preserve the Act as it is in Northern Ireland. Our other amendments are mainly technical and ensure that the legislation enables the Director of Labour Market Enforcement and enforcement bodies to tackle labour market law breaches and protect vulnerable workers.
Amendments 1 and 28 enable the Government to make provision for the director to receive a pension, in addition to paying a salary and other necessary expenses. Amendments 5, 6 and 7 ensure that the scope of the director’s labour market enforcement strategy covers all the enforcement bodies’ work by including the new LME undertakings and orders and slavery and trafficking prevention orders obtained by the GLAA where the offence is secondary or inchoate, such as aiding or inciting, or where there was no conviction due to insanity or disability.
Amendment 12 amends the National Minimum Wage Act 1998 to reflect that future enforcement may be through more than one body—HMRC’s national minimum wage team and the GLAA. We want reciprocal powers for the GLAA and certain bodies to ask for assistance. Amendments 14 to 20 will specify those bodies in legislation. They clarify that the power to add bodies to these lists can be used only for bodies whose functions are reserved. I can assure noble Lords that we are removing the National Crime Agency from the list only because it already has the right to ask for assistance through the Crime and Courts Act 2013.
Amendments 21 to 25 change the provisions on the court procedures relating to LME undertakings and orders to clarify when and which court can vary or discharge an LME order. Amendment 40 clarifies that the regulation-making powers in this chapter will be used only for reserved matters. Amendments 41, 42 and 43 provide definitions to aid interpretation of this chapter. Amendments 152 and 153 change the territorial extent clause of the Bill to reflect the position in the Modern Slavery Act 2015.
Finally, Amendment 38 repeals Section 55 of the Modern Slavery Act 2015 and the duty on the Secretary of State to consult on the role of the Gangmasters Licensing Authority. This is redundant with our recent consultation and the publication of our response. I beg to move.
My Lords, I have Amendment 154 in this group. The Minister has referred to the large number of government amendments and I accept that many of them are in response to comments made in Committee, although I am not sure that that could apply to the 46 amendments in this group. At the last stage, there was a good deal of comment about the number of government amendments laid at a relatively late stage of the Bill. These further amendments are not so much a response to the Committee as continuing the substantial development of the issues. The Minister may know that there has been some pressure on us to argue for recommitment of these clauses so that we can look at them calmly as a whole. That would have been the right thing to do. I canvassed a little on that but I detected not a lot of enthusiasm and I accept that we have limited time, so I will not spend time this afternoon arguing for recommitment. But I wanted to put that point on the record.
The first amendment is not the biggest but let us start at number one. I do not begrudge a pension for the director of labour market enforcement, but the amendment has puzzled me. I had a look at the Modern Slavery Act to see what was provided for the Independent Anti-slavery Commissioner and it does not refer to a pension. Given that it is not that unusual to appoint someone to a post which focuses on an issue, under the umbrella of a department but something new and quite discrete, is there not by now a standard formula for the appointments of such postholders? Does the wheel have to be reinvented a little differently each time?
By far a bigger issue is the reporting lines. The director deals with organisations that also have departmental reporting lines and which are now on the receiving end—that is a deliberate choice of phrase—of the provision of the strategy and the intelligence hub. On the charts with which we have been provided, there is no arrow in the reverse direction to show the contribution of those organisations. The Minister has heard me say this before, but this is particularly an issue for the Gangmasters Licensing Authority, the board of which is almost airbrushed out; it is hardly acknowledged. The director himself or herself has two masters in the form of two Secretaries of State with differing and possibly incompatible priorities. The Home Secretary is concerned with enforcement while BIS is concerned with deregulation, and I believe that it is to be BIS that will host and fund the director. An even bigger issue is that of resources for the functions and duties on which the amendments elaborate. The GLAA is to have new, extended functions and duties, and we need to be assured that adequate resources will be in place over the spending review period.
Amendment 2—I assure noble Lords that I shall not go through every amendment—seems to go into quite a degree of detail. Surely the detail of how one does something, which in this case is the obtaining and providing of information, should not have to be in legislation in this way. As long as the director has the power to require information, should that not be enough? The strategy will now propose annually the information that is to be provided and,
“the form, and manner … and frequency”.
The more you spell out in legislation, the more you have to spell out. Having gone a little way down this road, you realise that if you have done that, you need to spell out the other as well.
Amendment 21 refers to a court in a “part” of the UK. The Minister should be aware that I was going to ask this question: what is a part of the UK in the case of a court? Is it a country or is it a jurisdiction, which of course is not the same as a country in the case of the law and the courts because England and Wales are a jurisdiction. Is it a county or a town? It would be helpful to know which it is.
On the information gateways set out in Amendment 8 and subsequently, again I am not sure why it is necessary to provide for information to be disclosed to “a relevant staff member” and then to define who that is. If the director asks for information, surely any staff member is working on behalf of the director. This may be something technical related to the Data Protection Act and noble Lords may think that I am being spectacularly pedantic in raising it, but if someone gets it wrong, there are consequences. If an irrelevant staff member, as it were, seeks information, what is the status of that?
I have comments to make about what seems a very narrow gateway in terms of control and the time-consuming and cumbersome nature of it, but I would particularly like to ask what consultation has been undertaken on these provisions about information with the Information Commissioner, the commissioners appointed under RIPA, which is not yet RIP, and with the bodies concerned. I ask because there are issues about bureaucracy, protection and confidentiality—health bodies are involved here so I assume confidentiality has been considered—and I wonder whether the Home Office might produce a flow chart showing who must provide what, for what purpose and to whom, and whether it can then be used by the recipient for that purpose or another purpose?
Finally, my Amendment 154 would change the title of the Bill. A third of its clauses now deal with the labour market. There have been very significant additions since the Bill started life in the Commons. It seems to me—this is a substantive point and, I know, one of real concern among organisations—that it would be appropriate to call the Bill the immigration and labour market Bill. There were several amendments throughout the passage of the Bill to the effect that labour market matters are not confined to immigration. Indeed, they are very much wider than immigration. It is important not to badge the GLAA, the stand-alone body, as an immigration enforcer, and important not to adopt the mindset that immigration should be the driver of dealing with labour market abuses, or that labour market abuse is confined to illegal immigrants.
My Lords, I intervene briefly—I know that there are more substantive issues that the House will want to move on to fairly soon—simply to place on record my consternation that in Committee we decided to invent a whole new authority, the GLAA, yet here were are on Report with more than 100 new amendments. Ministers are damned if they do and damned if they do not. I recognise that we have a Minister who listens carefully to debates in your Lordships’ House. Indeed, he has a rollercoaster of meetings outside your Lordships’ House. His energy and willingness to listen are much to be commended, but could he distinguish for us which amendments have arisen as a result of consultations with and suggestions from outside organisations and Members of your Lordships’ House, and which are government amendments that are necessary to put right things that were not considered in Committee?
Would he also not agree that it is not good to make legislation on the hoof? In Committee I contrasted it with the way he dealt so impeccably with the modern slavery and human trafficking Bill, which had enjoyed pre-legislative scrutiny from Members of both Houses prior to being introduced in another place, and which was dealt with with great diligence by Members of both Houses and in an exemplary manner by the Minister himself. Surely that is the way we should enact legislation. But the Immigration Bill has completed all its stages in another place. It has now come here and he has introduced whole new clauses without any pre-legislative scrutiny or consideration of them in another place.
If we are honest, there has not been much consideration here. We pride ourselves, do we not, on being a House that scrutinises legislation in great detail, line by line and clause by clause? I honestly do not think that we can say we have done that with these clauses. Personally, I do not understand all the implications of the amendments that have been introduced. Although I am grateful to the Minister for the compendium of letters and detail that he sent us this morning, the idea that one could have read it all in advance for today is, I think he would agree, pretty unlikely.
So all I am doing is appealing to the noble Lord to look at the way we have dealt with this and ask officials whether it would not have been better to come forward at an earlier stage, or wait for another opportunity. I also put in an appeal at least for post-legislative scrutiny. If there is to be no sunset clause in the Bill, can we at least have an undertaking from the Government that we will revisit these clauses especially in 12 months from now to see how they work?
I have one other question for the noble Lord on resources. He will recall that at meetings held on the periphery of your Lordships’ House I questioned the level of resources available to what was the Gangmasters Licensing Authority, soon to be the GLAA. I know that he is deeply committed to tracking down those who exploit labour, who are involved in human trafficking and all the dreadful things that have been rehearsed at earlier stages of this and previous legislation. Is he really confident that there are sufficient resources? Given the research done by universities such as the University of Durham into the funding of the GLA, does he think that those resource problems have been overcome?
My Lords, I remind the House of my declaration of interest and the fact that for many years I have helped businesses trying to combat modern slavery. I am a little less critical than the noble Lord, Lord Alton, of the changes being made, because I think that they are necessary, but I agree that it would have been better, had we had the time, to make them in a different way. But we have this opportunity and not to have made them would, I think, have been a grave mistake. I support the noble Lord’s suggestion that the Government give an undertaking that we will come back to this in a year’s time to make sure that these necessary changes have done what we hope they will do.
I want to draw the attention of the House to something that is very often forgotten. It is that when companies look at their supply chain and seek to see where there is modern slavery, they usually start in some distant country. They think about somewhere where the rule of law is not as we would expect it to be. The shock, to many, is how much is found in so-called civilised and advanced countries—not just in Britain and the European Union but in the United States. It is very valuable that we have moved from the narrow attitude that you get this only in agriculture or with gangmasters, or that you get it only a long way away, to an understanding that we actually get it in almost every place, in almost every country and in the most remarkable situations.
I will quote an experience of mine. While I was working very hard on what we should do in countries in the Indian subcontinent, the very first and worst case happened in Manchester. We have to recognise that the issues with which we are dealing here are almost universal and a terrible indictment of man’s inhumanity to man.
My Lords, I want to ask about the information gateway provisions, and in particular Amendments 8 to 11. These are very substantial and intrusive new powers introduced at a very late stage of the Bill. Will the Minister elaborate a little on the justification for introducing them and why they were not thought of at an earlier stage of the Bill, even before Committee? They seem very wide, talking about the disclosure of information,
“for the purposes of the exercise of any function of the Director”.
Like my noble friend Lady Hamwee, I would be interested to know whether the Information Commissioner has given advice. If so, will the Minister share that advice and assessment with us? There is a need for safeguards to match the breadth and depth of the powers. It strikes me that, while mention is made of the Data Protection Act and the Regulation of Investigatory Powers Act—which is not quite RIP—there is, of course, a new EU regulation on data protection that will be directly applicable and therefore will not have to be transposed into an Act of Parliament. Have these powers been health-checked against the new regulation, which may be somewhat tighter than the Data Protection Act in certain areas?
I want to ask specifically about medical confidentiality. In Amendment 9, which introduces a new clause after Clause 5, subsection (1) says:
“A disclosure of information … authorised by section (Information gateways) does not breach … an obligation of confidence owed by the person making the disclosure”.
Since health bodies—NHS trusts, the Care Quality Commission and so on—are on the list for information sharing, this obviously raises the question of whether medical information is going to be covered, which is likely.
There do not seem to be any similar provisions to those in new subsections (5), (6), (7) and (8) of the new clause in relation to intelligence information and information pertaining to HMRC, where there is an obligation not to disclose information,
“without authorisation from the appropriate service chief”,
or “from HMRC Commissioners”. There does not seem to be anything comparable for medical data. Clearly, these are sensitive personal data for which a higher level of stewardship is already required under the Data Protection Act, and even more so under the new EU regulation. I would like an assurance that these provisions have gone through the filter of the ICO and the new EU regulation.
As has already been said, the Government have tabled a whole raft of amendments relating to the labour market aspects of the Bill and the new position of Director of Labour Market Enforcement and the associated organisations. A number of questions have been raised in this brief debate and I certainly do not intend to reiterate any of them.
We had a lengthy debate in Committee about including in the Bill wording stating that the primary purpose of the director is the enforcement of labour market legislation as defined in the Bill. The purpose of our amendment seeking to achieve that objective was to ensure that the director’s functions were exercised primarily for the purpose of protecting those vulnerable to labour market exploitation. As we know, the Government resisted defining in the Bill the director’s primary purpose and function. Our concern was that without a clear definition in the Bill of the function of the director—a post that is being established in an immigration Bill—there are likely to be misunderstandings or wrong assumptions on the part of those who might come into contact with the director’s organisation that the post was also about immigration checks, rather than just labour market enforcement.
In respect of one or more of the bodies under the Director of Labour Market Enforcement, the Government’s amendments appear to provide for the sharing of intelligence and new information-sharing gateways, and for the disclosure of information to specified persons. What assurances can the Government provide that these amendments will not lead to the director and the associated organisations moving into the field of immigration control issues, rather than just labour market enforcement and the protection of workers from exploitation?
My Lords, I am grateful for the contributions that have been made. I apologise to noble Lords for bombarding them with so many amendments at the last minute. As is often said, “You’re damned if you do and damned if you don’t”. I have found it difficult to gather together all the pieces of this jigsaw, given all the consultations that we had. I wanted to bring together all the letters and the consultation documents into one document. The Bill team dutifully did that. I thought that was a helpful pack to take home and suggested that we ought to provide it to other Members. Therefore, we sat late into the night, binding the documents, putting them into envelopes and then ferried them across to the House to put them on to colleagues’ desks in time for today’s debate. That process was not meant to be an insult to noble Lords. On the contrary, we were trying to be helpful. There is nothing new in the pack. It is simply a collection of documents that have been sent out by other means.
There was a very good question from the noble Lord, Lord Alton, about the nature of the amendments. Lest I be accused of making a virtue out of tabling too many government amendments, sometimes in the journey of legislation we forget important elements of it. To give some context, there was a wide consultation on this new role, which went out between October and December last year, and we listened to those views. It was published in December, and in January we published the Government’s response. Rather than publishing that response and dealing with the issue in guidance, we thought, “Let’s try to make amendments to the Bill in the light of the responses and how we want things to change”. That accounted for the bulk of the amendments.
We flagged up these amendments back in January, on the first day of Committee. I said that we had tabled a batch of government amendments relating to labour market enforcement and that others would follow at this stage. Breaking those down might be useful. Of the amendments we have tabled, 14 relate to the intelligence hub; seven relate to the DPRRC’s report, which was extremely helpful, and implementing all of its recommendations; 18 are technical; there were some drafting changes, which relate to the additional 15; and two relate to changes to the territorial extent of regulation-making powers.
I am grateful to the noble Baroness, Lady Hamwee, for giving me notice of one of the points she was intending to raise. We believe that the title, Immigration Act, is entirely adequate given the measures in it. While the labour market enforcement procedures will protect all vulnerable workers, they will have a particularly beneficial effect for those who migrate to the UK, who are more likely to fall victim to exploitative employers as they may not fully understand their rights and can be far removed from their normal support structures. Chapter 1 of the Bill will better equip our enforcement bodies to find and stop unacceptable behaviour by rogue businesses—the point raised the noble Lord, Lord Deben. We need to ensure that migrant workers coming to this country are not exploited by businesses here; we need to up our game and ensure that businesses are playing by the rules and treating their employees properly.
The noble Lord, Lord Rosser, made a general point about the remit and asked about immigration control and the director getting involved in immigration. If the director got involved or shared information about immigration control, they would be operating outside their statutory functions as set out in Clauses 2 and 3.
The noble Baroness, Lady Ludford, asked about information-sharing. An important point, which I made in my introduction to the amendments, is that we have taken great care to set out the basis for information-sharing. In fact, one of the reasons we tabled the amendments was to address an earlier concern that the Bill did not state which organisations were going to share information. Rogue businesses and employers which breach labour market legislation often breach other legislation. Therefore, we are creating a framework to enable information-sharing between the director and other bodies. The legislation will be underpinned by memorandums of understanding between the director and those bodies, setting out the types of information that can and cannot be shared and the relevant processes that need to be followed. We are legislating now because we wanted to take account of the public consultation and legal advice.
The noble Baroness, Lady Hamwee, asked if I would clarify the relationship between the Director of Labour Market Enforcement and the GLAA board. Our amendment clarifies that relationship by requiring those exercising labour market enforcement functions to have regard to the labour market enforcement strategy. My noble friend Lord Deben asked how we will know whether this legislation is effective. The publication of the strategy—it will be made public—will enable us to understand what the priorities are for the Director of Labour Market Enforcement and what issues he is uncovering in carrying out his duties. In addition, we will set out how the GLAA board must carry out its functions in such a way as to fulfil its part in the labour market enforcement strategy. The GLAA board will remain accountable to the Home Secretary for the delivery of its functions, but those functions will now sit within the broader strategic context provided for by the role of the director.
On resources, which the noble Lords, Lord Alton and Lord Rosser, as well as my noble friend Lord Deben focused on, perhaps a better explanation was provided in my letter of 20 January. I set out there that the current levels of resources available for the 2015-16 financial year are that the Employment Agency Standards Inspectorate has a budget of £500,000, the HMRC’s national minimum wage team has a budget of £13.2 million —that was a significant increase, as your Lordships might recall, as additional resources of, I think, about £4 million were put into that—and the Gangmasters Licensing Authority has a budget of £4.3 million.
Of course, that will all be part of the ongoing review of all government spending, but our track record in creating offices such as the Independent Anti-slavery Commissioner shows that we have set up such offices with a particular purpose and focus, and we will want to make sure that they have the tools to do the job we ask of them.
I think that I have responded to the majority of the points that were raised—
I thank my noble friend for giving way. I still have a problem, and that is that we are making these major changes, but the Bill is still called just the “Immigration Bill”. Given that the Bill now covers things that are at a much further remove from immigrants, the Government really ought to think seriously about its Title. It really is something very different from that.
I shall do my best to address the point, and I hear what my noble friend says. He talked about the lack of pre-legislative scrutiny of the Bill, but of course there were two days of evidence-taking sessions in Committee in the Commons, which were all published and which actually helped us greatly in shaping many of these government amendments.
However, the Bill is particularly about protecting, if you like, in two ways. The first purpose of the Bill is to create some discomfort for those who are illegally in the UK so that they cannot have a normal settled life while they are actually trespassing on our laws and are here illegally. The other area, which I think should carry a great deal of support, is about making sure that those people who are here legally are treated properly. In that sense, putting those things together, we believe that the Title of the Bill still stands. I accept that there is an argument or debate on that, but I have made my response to that.
I did not answer that, and it was a good question. There is a court in another part of the Chamber which is rushing advice to me, which will save another letter. In Amendment 21, what does the reference to a court in a “part” of the UK mean? Part of the UK in the context of these provisions on court proceedings means jurisdiction—whether the court is in England and Wales, in Scotland or in Northern Ireland. I hope that is helpful.
Amendment 1 agreed.
Clause 2: Labour market enforcement strategy
Amendments 2 to 4
2: Clause 2, page 2, line 25, at end insert—
“(iii) the information, or descriptions of information, that should be provided to the Director for the purposes of his or her functions by any person by whom, or by whose officers, labour market enforcement functions are exercisable, and(iv) the form and manner in which, and frequency with which, that information should be provided,”
3: Clause 2, page 2, line 30, leave out “subsection (2)(b)” and insert “paragraph (b) of subsection (2)”
4: Clause 2, page 2, line 31, leave out “concerned” and insert “mentioned in sub-paragraphs (i) and (ii) of that paragraph”
Amendments 2 to 4 agreed.
Clause 3: Non-compliance in the labour market etc: interpretation
Amendments 5 to 7
5: Clause 3, page 3, line 28, at end insert—
“( ) any function of an enforcing authority under this Chapter,”
6: Clause 3, page 4, line 12, after “following” insert “—
7: Clause 3, page 4, line 13, leave out “or (e)” and insert “, (e) or (i) to (l), or
(ii) a finding of a kind mentioned in section 14(1)(b) or (c) of that Act in connection with any such offence”
Amendments 5 to 7 agreed.
Amendments 8 and 9
8: After Clause 5, insert the following new Clause—
(1) A person may disclose information to the Director or a relevant staff member if the disclosure is made for the purposes of the exercise of any function of the Director.
(2) Information obtained by the Director or a relevant staff member in connection with the exercise of any function of the Director may be used by the Director or a relevant staff member in connection with the exercise of any other function of the Director.
(3) The Director or a relevant staff member may disclose information obtained in connection with the exercise of any function of the Director to a specified person if the disclosure is made for the purposes of the exercise of any function of the specified person.
(4) “Specified person” means a person specified in Schedule (Persons to whom Director etc may disclose information) (persons to whom Director etc may disclose information).
(5) The Secretary of State may by regulations amend Schedule (Persons to whom Director etc may disclose information).
(6) In this section, “relevant staff member” means a member of staff provided to the Director under section 1(4).”
9: After Clause 5, insert the following new Clause—
“Information gateways: supplementary
(1) A disclosure of information which is authorised by section (Information gateways) does not breach—
(a) an obligation of confidence owed by the person making the disclosure, or(b) any other restriction on the disclosure of information (however imposed).(2) But nothing in section (Information gateways) authorises the making of a disclosure which—
(a) contravenes the Data Protection Act 1998, or(b) is prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000.(3) Section (Information gateways) does not limit the circumstances in which information may be disclosed apart from that section.
(4) Section (Information gateways)(1) does not authorise a person serving in an intelligence service to disclose information to the Director or a relevant staff member.
But this does not affect the disclosures which such a person may make in accordance with intelligence service disclosure arrangements.(5) Intelligence service information may not be disclosed by the Director or a relevant staff member without authorisation from the appropriate service chief.
(6) If the Director or a relevant staff member has disclosed intelligence service information to a person, that person may not further disclose that information without authorisation from the appropriate service chief.
(7) HMRC information may not be disclosed by the Director or a relevant staff member without authorisation from HMRC Commissioners.
(8) If the Director or a relevant staff member has disclosed HMRC information to a person, that person may not further disclose that information without authorisation from HMRC Commissioners.
(9) Subsections (7) and (8) do not apply to national minimum wage information.
(10) If a person contravenes subsection (7) or (8) by disclosing revenue and customs information relating to a person whose identity—
(a) is specified in the disclosure, or(b) can be deduced from it,section 19 of the Commissioners for Revenue and Customs Act 2005 (wrongful disclosure) applies in relation to that disclosure as it applies in relation to a disclosure of such information in contravention of section 20(9) of that Act.(11) In this section—
“appropriate service chief” means—(a) the Director-General of the Security Service (in the case of information obtained by the Director or a relevant staff member from that Service or a person acting on its behalf);(b) the Chief of the Secret Intelligence Service (in the case of information so obtained from that Service or a person acting on its behalf);(c) the Director of GCHQ (in the case of information so obtained from GCHQ or a person acting on its behalf);“GCHQ” has the same meaning as in the Intelligence Services Act 1994;“HMRC information” means information disclosed to the Director or a relevant staff member under section (Information gateways) by HMRC Commissioners or a person acting on behalf of HMRC Commissioners;“intelligence service” means—(a) the Security Service;(b) the Secret Intelligence Service;(c) GCHQ;“intelligence service disclosure arrangements” means—(a) arrangements made by the Director-General of the Security Service under section 2(2)(a) of the Security Service Act 1989 about the disclosure of information by that Service,(b) arrangements made by the Chief of the Intelligence Service under section 2(2)(a) of the Intelligence Services Act 1994 about the disclosure of information by that Service, and(c) arrangements made by the Director of GCHQ under section 4(2)(a) of that Act about the disclosure of information by GCHQ;“intelligence service information” means information obtained from an intelligence service or a person acting on behalf of an intelligence service;“national minimum wage information” means information obtained by an officer in the course of acting—(a) for the purposes of the National Minimum Wage Act 1998 (see section 13 of that Act), or(b) by virtue of section 24(2);“relevant staff member” has the same meaning as in section (Information gateways);“revenue and customs information relating to a person” has the meaning given in section 19(2) of the Commissioners for Revenue and Customs Act 2005.”
Amendments 8 and 9 agreed.
Clause 6: Information hub
10: Clause 6, page 5, line 17, at end insert—
“(2) The Director may request any person by whom, or by whose officers, labour market enforcement functions are exercisable to provide the Director with any non-compliance information specified or of a description specified in the request.
(3) “Non-compliance information” means information relating to non-compliance in the labour market which the Director considers would facilitate the exercise of any of his or her functions.
(4) A person by whom, or by whose officers, labour market enforcement functions are exercisable may request the Director to provide the person, or an officer of the person, with any enforcement information specified or of a description specified in the request.
(5) “Enforcement information” means information which the person making the request considers would facilitate the exercise of any labour market enforcement function of the person or of an officer of the person.
(6) A person who receives a request under this section must respond to it in writing within a reasonable period.”
Amendment 10 agreed.
11: Before Schedule 1, insert the following new Schedule—
PERSONS TO WHOM DIRECTOR etc MAY DISCLOSE INFORMATION
Authorities with functions in connection with the labour market or the work place etc
The Secretary of State.HMRC Commissioners.A person by whom, or by whose officers, labour market enforcement functions are exercisable.The Health and Safety Executive.An enforcing authority within the meaning of Part 1 of the Health and Safety at Work etc. Act 1974 (see section 18(7) of that Act).An inspector appointed by such an enforcing authority (see section 19 of that Act).An enforcement authority within the meaning of regulation 28 of the Working Time Regulations 1998 (S.I. 1998/1833).An inspector appointed by such an enforcement authority (see Schedule 3 to those Regulations)The Low Pay Commission.The Pensions Regulator.Law enforcement and border security
A chief officer of police for a police area in England and Wales.A local policing body within the meaning given by section 101(1) of the Police Act 1996.The chief constable of the British Transport Police Force.The chief constable of the Police Service of Scotland.The Chief Constable of the Police Service of Northern Ireland.A person appointed as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971.Local government
A county or district council in England.A London borough council.The Greater London Authority.The Common Council of the City of London.The Council of the Isles of Scilly.A county or county borough council in Wales.A council constituted under section 2 of the Local Government etc. (Scotland) Act 1994.A district council in Northern Ireland.Health bodies
The Care Quality Commission.A National Health Service trust established under section 25 of the National Health Service Act 2006 or section 18 of the National Health Service (Wales) Act 2006. An NHS foundation trust within the meaning given by section 30 of the National Health Service Act 2006.A Local Health Board established under section 11 of the National Health Service (Wales) Act 2006.Other
The Independent Anti-slavery Commissioner.A Northern Ireland department.”
Amendment 11 agreed.
Schedule 1: Functions in relation to labour market
12: Schedule 1, page 72, line 13, at end insert—
“6A In section 15 (information obtained by officers)—
(a) in subsection (3)(b), after “any” insert “eligible”;(b) in subsection (4)(a), after “to any” insert “eligible”;(c) in subsection (8), for the words from ““relevant” to “body which,” substitute ““eligible relevant authority” means any relevant authority within the meaning given by section 13(1A) which”.”
Amendment 12 agreed.
Clause 10: PACE powers in England and Wales for labour abuse prevention officers
13: Clause 10, page 6, line 42, leave out from “under” to “may” in line 43 and insert “subsection (4)(e)”
Amendment 13 agreed.
Clause 11: Relationship with other agencies: requests for assistance
Amendments 14 to 20
14: Clause 11, page 7, line 17, leave out “relevant person” and insert “of the following”
15: Clause 11, page 7, line 18, at end insert “—
(a) a chief officer of police for a police area in England and Wales;(b) the Director General of the National Crime Agency;(c) a person appointed as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971;(d) any other person prescribed or of a prescribed description.”
16: Clause 11, page 7, leave out lines 22 and 23 and insert—
“(3) Any of the following persons may request the Authority to provide assistance to the person—
(a) a chief officer of police for a police area in England and Wales;(b) a person appointed as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971;(c) any other person prescribed or of a prescribed description.”
17: Clause 11, page 7, line 24, leave out “relevant”
18: Clause 11, page 7, leave out lines 33 to 39
19: Clause 11, page 7, line 40, leave out from beginning to end of line 15 on page 8 and insert—
“( ) Regulations under this section must not make provision which would be—
(a) within the legislative competence of the Scottish Parliament if contained in an Act of that Parliament,(b) within the legislative competence of the National Assembly for Wales if contained in an Act of that Assembly, or(c) within the legislative competence of the Northern Ireland Assembly if contained in an Act of that Assembly made without the consent of the Secretary of State.”
20: Clause 11, page 8, line 19, leave out from “22A” to end of line 20 and insert “(1)(d) or (3)(c) (regulations regarding persons whom the Authority may request to provide assistance and who may request assistance from Authority).”
Amendments 14 to 20 agreed.
Clause 20: Further provision about LME orders
21: Clause 20, page 13, line 14, at end insert “and which was made by the court or any other court in the same part of the United Kingdom as the court”
Amendment 21 agreed.
Clause 21: Variation and discharge
Amendments 22 to 24
22: Clause 21, page 13, line 24, leave out paragraph (a)
23: Clause 21, page 13, line 26, leave out “order under section 18” and insert “LME order”
24: Clause 21, page 13, line 26, after “Wales” insert (whether made under section 16 or 18)”
Amendments 22 to 24 agreed.
Clause 22: Appeals
25: Clause 22, page 13, line 39, leave out “on an application”
Amendment 25 agreed.
Clause 23: Code of practice
Amendments 26 and 27
26: Clause 23, page 14, line 21, at end insert—
“( ) The code and any revised code—
(a) must not be issued unless a draft has been laid before Parliament, and(b) comes into force on such day as the Secretary of State appoints by regulations.”
27: Clause 23, page 14, line 22, leave out “lay before Parliament, and”
Amendments 26 and 27 agreed.
Schedule 2: Consequential and related amendments
Amendments 28 to 39
28: Schedule 2, page 74, line 40, at end insert—
“(b) under the heading “Offices”, at the appropriate place insert “Director of Labour Market Enforcement”.
29: Schedule 2, page 74, line 40, at end insert—
“Employment Agencies Act 1973 (c. 35)3A (1) Section 9 of the Employment Agencies Act 1973 (inspection) is amended as follows.
(2) In subsection (4)—
(a) in paragraph (a), for the words before sub-paragraph (i) substitute “No information to which this subsection applies shall be disclosed except—”;(b) at the end of paragraph (a) insert “; or“(vii) to an officer acting by virtue of section 24 of the Immigration Act 2016 (investigative functions in connection with labour market enforcement undertakings and orders); or“(viii) to an officer acting for the purposes of Part 2 of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 for any purpose relating to that Part; or(ix) to the Pensions Regulator for the purposes of the exercise of any function of the Regulator; or(x) to the Care Quality Commission for the purposes of the exercise of any function of the Commission.”(3) After subsection (4) insert—
“(5) Subsection (4) applies to—
(a) information obtained in the course of exercising the powers conferred by this section,(b) information obtained pursuant to section 15(5A) of the National Minimum Wage Act 1998, and(c) information obtained in the course of exercising powers by virtue of section 24(1) of the Immigration Act 2016 (investigative functions in connection with labour market enforcement undertakings and orders).””
30: Schedule 2, page 75, line 16, at end insert—
“National Minimum Wage Act 1998 (c. 39)5A (1) Section 15 of the National Minimum Wage Act 1998 (information obtained by officers) is amended as follows.
(2) In subsection (1)—
(a) after “to” insert “—(a) ”;(b) at the end insert “, and(b) any information obtained by an officer acting by virtue of section 24(2) of the Immigration Act 2016 (investigative functions in connection with labour market enforcement undertakings and orders).” (3) After subsection (5B) insert—
“(5C) Information to which this section applies—
(a) may be supplied by, or with the authorisation of, the Secretary of State to an officer acting by virtue of section 24 of the Immigration Act 2016 (investigative functions in connection with labour market enforcement undertakings and orders); and(b) may be used by an officer so acting for any purpose for which the officer is so acting.””
31: Schedule 2, page 77, line 26, leave out paragraph (c)
32: Schedule 2, page 78, line 12, at end insert—
“20A (1) Section 19 (information relating to gangmasters) is amended as follows.
(2) In subsection (1)—
(a) for the words before paragraph (a) substitute “Information to which this subsection applies—”;(b) for paragraph (a) substitute—“(a) may be supplied to any person for use for the purposes of, or for any purpose connected with, the exercise of functions under this Act,“(aa) may be supplied to any person by whom, or by whose officers, labour market enforcement functions are exercisable for the purposes of, or for any purpose connected with, the exercise of such functions, and”.(3) After subsection (1) insert—
“(1A) Subsection (1) applies to—
(a) information held by any person for the purposes of, or for any purpose connected with, the exercise of functions under this Act, and(b) information held by any officer acting by virtue of section 24(3) of the Immigration Act 2016 (investigative functions in connection with labour market enforcement undertakings and orders).(1B) In subsection (1) “labour market enforcement functions” has the same meaning as in Chapter 1 of Part 1 of the Immigration Act 2016 (see section 3 of that Act).”
(4) In subsection (2)—
(a) omit “relating to the operations of a person acting as a gangmaster”;(b) for “(1)(b)” substitute “(1)(aa) or (b)”.”
33: Schedule 2, page 78, line 13, leave out paragraph 21
34: Schedule 2, page 78, leave out lines 37 to 45 and insert—
“(5) In paragraph 10, for sub-paragraph (2) substitute—
“(2) Section 8(1) as it applies in relation to Northern Ireland licences is to be read as if the words “with the approval of the Secretary of State” were omitted.””
35: Schedule 2, page 79, leave out lines 3 to 5
36: Schedule 2, page 79, line 5, at end insert—
“(6) After paragraph 16 insert—
“Section 19: Information relating to gangmasters16A (1) Section 19 as it applies in relation to Northern Ireland functions is to be read as if—
(a) paragraph (aa) of subsection (1) (and the reference to it in subsection (2)) were omitted,(b) subsections (1A)(b) and (1B) were omitted, and(c) in subsection (2), after “Information” there were inserted the words “relating to the operations of a person acting as a gangmaster”.(2) In this paragraph “Northern Ireland functions” means functions under this Act in connection with persons acting as gangmasters in Northern Ireland or persons acting as gangmasters in relation to work in Northern Ireland.
Section 22A: Relationship with other agencies: requests for assistance16B Section 22A does not apply in relation to the Authority’s functions in connection with persons acting as gangmasters in Northern Ireland or persons acting as gangmasters in relation to work in Northern Ireland.””
37: Schedule 2, page 79, line 5, at end insert—
“Pensions Act 2004 (c. 35)22A In the Pensions Act 2004, in Schedule 3 (certain permitted disclosures of restricted information held by the Pensions Regulator), at the end of the table insert—
“Director of Labour Market Enforcement or a member of staff provided to the Director under section 1(4) of the Immigration Act 2016. Any of the Director’s functions.””
“Director of Labour Market Enforcement or a member of staff provided to the Director under section 1(4) of the Immigration Act 2016.
Any of the Director’s functions.””
38: Schedule 2, page 79, line 19, at end insert—
“26A At the beginning of Part 7, after the italic heading “Miscellaneous” insert—
“54A Gangmasters and Labour Abuse Authority: information gateways
(1) A specified person may disclose information to the Gangmasters and Labour Abuse Authority (the “Authority”) or a relevant officer if the disclosure is made for the purposes of the exercise of any function of the Authority or the officer under this Act.
(2) Information obtained by the Authority or a relevant officer in connection with the exercise of any function of the Authority or the officer under this Act may be used by the Authority or the officer in connection with the exercise of any other such function of the Authority or the officer.
(3) The Authority or a relevant officer may disclose to a specified person information obtained in connection with the exercise of any function of the Authority or the officer under this Act if the disclosure is made for the purposes of the exercise of any function of the specified person.
(4) A disclosure of information which is authorised by this section does not breach—
(a) an obligation of confidence owed by the person making the disclosure, or(b) any other restriction on the disclosure of information (however imposed).(5) But nothing in this section authorises the making of a disclosure which—
(a) contravenes the Data Protection Act 1998, or(b) is prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000.(6) This section does not limit the circumstances in which information may be disclosed apart from this section.
(7) “Specified person” means a person specified in Schedule 4A (information gateways: specified persons).
(8) The Secretary of State may by regulations amend Schedule 4A.
(9) In this section, “relevant officer” means an officer of the Authority who is acting for the purposes of Part 1 or 2 of this Act (see sections 11A and 30A).”
26B Omit section 55 (review of Gangmasters Licensing Authority).
26C In section 58 (regulations), in subsection (4), after paragraph (j) insert—
“(ja) regulations under section 54A(8) (power to amend Schedule 4A);”.26D In section 60 (extent)—
(a) in subsection (1), after “section 53)” insert “and section 54A, and Schedule 4A, in Part 7”;(b) in subsection (3), after “and 7” insert “(except for section 54A and Schedule 4A)”.”
39: Page 79, line 22, at end insert—
“27A After Schedule 4 insert—
INFORMATION GATEWAYS: SPECIFIED PERSONS
Authorities with functions in connection with the labour market etc
The Secretary of State.A person by whom, or by whose officers, labour market enforcement functions (within the meaning given by section 3 of the Immigration Act 2016) are exercisable.Law enforcement and border securityA chief officer of police for a police area in England and Wales.The chief constable of the British Transport Police Force.An immigration officer.Local government
A county council in England or Wales.A county borough council in Wales. A district council in England.A London borough council.The Greater London Authority.The Common Council of the City of London.The Council of the Isles of Scilly.Health bodies
A National Health Service trust established under section 25 of the National Health Service Act 2006 or section 18 of the National Health Service (Wales) Act 2006.An NHS foundation trust within the meaning given by section 30 of the National Health Service Act 2006.A Local Health Board established under section 11 of the National Health Service (Wales) Act 2006.Other
The Independent Anti-slavery Commissioner.””
Amendments 28 to 39 agreed.
Clause 30: Regulations under Chapter 1
40: Clause 30, page 17, line 24, leave out subsections (1) to (3) and insert—
“(1) Regulations under section 3 or 12 must not prescribe a requirement, function or offence if provision imposing the requirement, conferring the function or creating the offence falls within subsection (3).
(2) Regulations under section 9 must not confer a function if provision doing so falls within subsection (3).
(3) Provision falls within this subsection if—
(a) it would be within the legislative competence of the Scottish Parliament if contained in an Act of that Parliament,(b) it would be within the legislative competence of the National Assembly for Wales if contained in an Act of that Assembly, or(c) it would be within the legislative competence of the Northern Ireland Assembly if contained in an Act of that Assembly made without the consent of the Secretary of State.”
Amendment 40 agreed.
Clause 31: Interpretation of Chapter 1
Amendments 41 to 43
41: Clause 31, page 18, line 18, at end insert—
““the Director” has the meaning given by section 1;”
42: Clause 31, page 18, line 29, at end insert—
““HMRC Commissioners” means the Commissioners for Her Majesty’s Revenue and Customs;”
43: Clause 31, page 18, line 36, at end insert—
““strategy” has the meaning given by section 2;”
Amendments 41 to 43 agreed.
Clause 32: Offence of illegal working
44: Clause 32, page 19, line 6, after “person” insert “(“P”)”
My Lords, I have considered carefully the constructive debate on illegal working that we had in Committee—particularly on the amendments tabled by the noble Lord, Lord Rosser. I am also grateful to noble Lords who have given up so much time to discuss these issues with me in recent weeks. I accept that a compelling case has been made. I hope that with Amendments 44, 45, 47, 48 and 51 to Clause 32, which have been tabled in my name, noble Lords will agree that concerns have been addressed.
Illegal working is a key driver of illegal migration. Being able to work illegally encourages economic migrants to put themselves in harm’s way in efforts to enter the UK illegally or to overstay. We need to address these economic motivations. Illegal working also undercuts legitimate businesses which play by the rules, and may depress wages and the availability of work for British citizens and lawful migrants. Individuals with an irregular immigration status are likely already to be committing a criminal offence, regardless of whether they work. The creation of this offence does not alter the fact. Many economic migrants are not here because they have been trafficked or enslaved, but because they have chosen to break the law in order to work illegally in the UK.
Parliament has already provided immigration officers with powers to recover the proceeds of crime in relation to immigration offences through the UK Borders Act 2007, but the courts do not always regard earnings derived from working illegally as proceeds of crime when considering cash forfeiture or confiscation cases under existing legislation, so the provisions of the 2007 Act are being frustrated. We need to plug this important gap in the law to deter illegal economic migration, including by those who work as self-employed without permission.
Victims of modern slavery are not the target of the offence: they have a strong statutory defence provided for by Section 45 of the Modern Slavery Act 2015. Traffickers and slavers always try to mislead their victims about the consequences of asking for help from authorities or non-government organisations. Their business model depends on controlling their victims, including the victims’ access to information. I do not believe that the creation of this offence makes a material difference to traffickers’ ability to spread disinformation.
The truth is that there is only one way to counter the lies spread by traffickers: we need to empower victims by providing them with accurate information about their rights and means of redress, and we need to do this through channels that are accessible and trusted. That is why the Government work closely with NGOs and are constantly looking for new and better ways to reach victims.
I reassure noble Lords that the Government will ask the modern slavery strategy and implementation group, a group chaired by Ministers that brings together non-government organisations and other partners, to advise on what further steps can be taken to ensure that victims and would-be victims understand the law and know what support is available to them. The Government have put victims at the heart of our modern slavery strategy. We are also seeking to strengthen enforcement against exploitation through measures in Part 1.
However, as I said, we have listened carefully to the concerns expressed by noble Lords about the strict liability nature of the offence and the resulting disparity with the offence of employing an illegal worker. By tabling the amendments in my name, the Government propose to introduce a mens rea for the offence. The effect of the Government’s amendments is that the individual must either know or have reasonable cause to believe that they have no right to work. This means that the offence would not be committed by someone who is working illegally but does not know, or does not have reasonable cause to believe, that he or she lacks permission to work.
We feel that this strikes the right balance between protecting the vulnerable and ensuring that those who make no effort to ensure that they are complying with UK immigration law cannot simply plead ignorance of our Immigration Rules where they should have known that they had no permission to work.
I turn to the minor and technical amendments tabled in my name to Clauses 34 and 87 and Schedule 4. Amendments 53 and 55 to Clause 34 concern the powers to prevent illegal working in licensed premises. Clause 34 allows regulations to make provision for Scotland and Northern Ireland equivalent to that made for England and Wales. To this end, the clause allows the regulations to amend an Act of the Scottish Parliament. However, in Scotland the equivalent of late-night refreshment, so-called late-hours catering, is dealt with by the Civic Government (Scotland) Act 1982. This is an Act of the Westminster Parliament which predates devolution. Amendments 53 and 55 to Clause 34 address this technical conundrum.
Amendment 148 to Clause 87 deletes a reference to a regulation-making power for private hire and taxi provisions to cover Scotland and Northern Ireland. This is now redundant as the necessary provisions have been placed on the face of the Bill. Amendment 56 to Schedule 4 adds a definition of “the Immigration Acts” to the Taxis Act (Northern Ireland) 2008. This is a necessary amendment because the Interpretation Act (Northern Ireland) 1954 does not contain such a definition. Without this amendment, the provisions could not operate properly in Northern Ireland. I beg to move.
We have amendments in this group. First, I thank the Government for their amendment, which means that the offence of illegal working is committed only by a person who,
“knows or has reasonable cause to believe”,
that they are disqualified from working by their immigration status. It is different in wording from our amendment, which refers to a defence of having a “reasonable excuse” for working when disqualified from doing so by immigration status. I am certainly no lawyer, but I suspect that our amendment might provide a broader range of people with a defence than the government amendment. However, since the Government have taken on board the case that has been made for providing a defence to the offence of legal working, we do not intend to pursue this point any further.
We have previously argued the case for deleting the intended new offence of illegal working from the Bill, and we are associated again with an amendment to that effect. Not a single person could be prosecuted under this new offence who cannot already be prosecuted under existing offences; it is already a criminal offence under the Immigration Act 1971 to enter the UK without leave, when leave is required, and to overstay or be in breach of a condition of such leave. The Government’s argument for a new criminal offence of illegal working is that they believe it will provide an increased likelihood of seizing earnings through confiscation orders made under the Proceeds of Crime Act 2002. The Government can confiscate relevant sums from those who work in breach of the terms of their existing stay under the 2002 Act but cannot do so for those working illegally, and the Government wish to close the gap. However, government figures indicate that the 2002 Act is not typically used for offences of working in breach of conditions, although it is deployed in cases involving other immigration offences. The government figures indicate that only 16 confiscation orders were made under the 2002 Act in 2014-15, and none of them followed criminal convictions for working in breach of conditions.
As I understand it, proceeds of crime proceedings are apt to be lengthy and costly, and the Crown Prosecution Service guidance on proceeds of crime says that it should prioritise,
“the recovery of assets from serious and organised crime and serious economic crime”.
I suggest that there would be few cases in which it would be cost effective or in the public interest to pursue confiscation proceedings to seize wages earned as a result of illegal working as proceeds of crime. However, there must be a distinct likelihood that the existence of the offence of illegal working will be used as an additional threat by those abusing or taking advantage of trafficked or enslaved persons to discourage them from going to the authorities, or indeed to coerce such people into exploitation in the first place. Yet one objective of the Bill is to encourage people who are being exploited to come forward. A trafficked or enslaved person who knows that they are not permitted to work will of course have no defence under the government amendment of “reasonable cause to believe”. So it is quite possible that the new offence of illegal working will on the one hand raise little or no additional money under the 2002 Act, and on the other hand, by providing the threat of prosecution for those exploiting vulnerable people who should not be in this country, be a further means of discouraging them from coming forward to the authorities. I very much hope that the Government, even at this late stage, will be prepared to give further thought to the wisdom of introducing this new offence of illegal working.
The Minister said during the previous stage that the amendment that would insert “without reasonable excuse” would introduce considerable ambiguity and risk successful prosecutions. The amendment is down again today. We should consider it. The courts, the CPS and the police often have to assess whether something is reasonable so, as I read it, the amendment tabled by the noble Lord, Lord Rosser, is a matter not of ambiguity but of judgment, although I concede that if it was strict liability there would be no need of judgment.
For the reasons that the noble Lord gave, the reasonable cause—I accept that that is a more normal formula—in the government amendment is welcome, but I do not believe it goes far enough to provide a defence to someone who knows that he is illegal but who has been abused and exploited, perhaps at a lower level than is covered by the Modern Slavery Act. If it is within the Modern Slavery Act, the defence kicks in only after there has been a charge. I do not think I am alone in preferring to see a charge not even getting off the starting block.
Our Amendments 49 and 50 are in response to the Minister’s explanation in Committee that the clause is largely driven by the wish to bring it within the Proceeds of Crime Act. He assured the Committee that the Proceeds of Crime Act would not be applied to inappropriate targets:
“We are talking here about people who have on their person a significant amount of cash in excess of £1,000”.—[Official Report, 18/1/16; col 626.].
I took those words literally and our amendments are an attempt to reflect them because, if that is the policy, the legislation should say so. I accept that the CPS guidance is to prioritise the recovery of the proceeds of serious organised crime and serious economic crime and that the confiscation order must be proportionate, but to create an offence with the risks which have been referred to and which I will come to in a moment seems an inappropriate direction in which to go if there is such a clear view on the part of the Government about when it will be used.
We remain extremely concerned about Clause 32 as a whole, and my noble friend Lord Paddick and I have our names to Amendment 52 to leave it out because of the danger of an increase, not a reduction, in exploitation. As we discussed on the previous group, the Bill is about more than immigration. If you fear prosecution and imprisonment, is that not a greater deterrent to standing up for your rights? Someone working without the right to do so should not be exploited any more than someone with the right, but we think that the new offence may carry far more risks than it solves problems.
I suspect that the new offence, or at least casting it in this way, is probably quite totemic for the Government but, given the risks of applying the Proceeds of Crime Act, surely there are other ways to deal with the issue, such as the existing offences that the noble Lord, Lord Rosser, has referred to, rather than by giving abusers and exploiters even more ammunition and ways that they can say to workers, “We can really cause trouble for you. You are in a situation that you can’t get out of, and you are in terrible trouble if you try to go to the police, squeal on us or whatever”. Given that existing offences could be used to prosecute everyone who would fall within the new section, we remain unpersuaded that it is appropriate to include the clause in the Bill.
My Lords, in relation to the point made by the noble Lord, Lord Rosser, as against the clause as introduced, the virtue of the clause as amended by the government amendment is that the prosecutor would have to prove that the person in question knew or had reasonable cause to believe that he was disqualified, whereas in Amendment 46, which was proposed by the noble Lords, Lord Rosser and Lord Kennedy of Southwark, the onus would be the other way: in other words, the defence would have to prove that the matter was done without reasonable cause. I think that that is the nature of the law in this matter. So in a sense the government amendment has greater protection for the person alleged to have committed the offence than Amendment 46 would have done.
My Lords, I support Amendment 52, which would leave out Clause 32. I shall make one specific and one general point.
I am grateful to the Minister for his collection of letters. I am not sure that it is quite a limited edition, and I have visions of him scurrying around late at night delivering them. I have found it helpful because of course I had mislaid the letter of 28 January, in which he clarified that the offence of legal working will apply to asylum seekers who are not permitted to work but also to those who have been granted permission but take a job that is not on the shortage occupation list. Whatever one thinks of the clause itself, and I am opposed to it, surely it is unfair that it is applied to people who have a clear legal right to be in the country at that point. This has been presented as a clause that applies to people who have no legitimate right to be in the country, but those who are still seeking asylum have that right. I was concerned about that because it seems unfair.
My more general point is that, like other noble Lords, I fear that despite the government amendment the clause will serve to encourage exploitation. I was disturbed to read in yesterday’s Independent a report of a study of young migrant men carried out by the University of Manchester as part of a European Commission study, which found that these young men felt that they are constantly having to justify their status and made to feel that they are on the wrong side of the law even when they have done nothing wrong. I am not arguing that there is a clear cause and effect, but when we have government policies like the previous Immigration Act, this Bill and particularly this clause, which deliberately try to create a hostile environment for undocumented migrants, unfortunately they can create a hostile environment for those who have every right to be here. That impedes their ability to integrate into British society, which can be in nobody’s interests.
My Lords, I wish to add to the very sound arguments put by my noble friend Lady Hamwee and others on the question of the resources of the Crown Prosecution Service and the police. Surely there are many pressures on them and demands for resources. I was reading the other day that there are 5 million frauds against bank customers every year and lax attention by the banks. Given the extent of child abuse and sexual abuse and the explosion of problems online which the CPS is trying to react to and get on top of, is it right to make this an extra priority for the CPS when we ask so much of it in other areas?
Is there not also a possible perverse result? If people are illegally in the country—I take the point made by the noble Baroness, Lady Lister, about asylum seekers not being illegally in the country; I assume that we are focusing on those who are—is not the priority to seek their removal? The proceeds of crime proceedings that could be taken against them could be very lengthy, and you would be finding a reason to prolong their stay in the country at the expense of someone—certainly the criminal proceedings would be at the expense of the taxpayer. It would be very hard to remove these people and therefore say that they could not be present at their own criminal trial, so you would give a perverse extension of the stay of people in the country who should not be in it. This does not seem to be terribly wise policy-making, as regards both the resources of the CPS and the perverse incentives to prolong people’s stay in the country.
I wish simply to thank the Minister for these changes, particularly in view of the two codas from our legal friends on the dangers of the amendments and the explanation that my noble friend put forward about their real meaning. I hope the Minister will take back to the Government the great advantage to be gained from being seen to listen to sensible arguments in the House of Lords and changing the legislation as a result. There are many other occasions when we would get through our business much more quickly if sensible debate was ended by a sensible change of mind by government.
My Lords, I will contribute a slightly wider point to the discussion. It is surely clear to all of us that a substantial number of people would like to come to this country and work illegally. As the Home Office will confirm, nearly half of those who apply for asylum have previously been working illegally and apply only when discovered. We have literally thousands of people queueing up in Calais wanting to get into Britain and work illegally. They know perfectly well that they will be illegal when they get here but they come because they want to work and send money home. Understandable though that may be, it is surely essential that there should be a disincentive to those people from making that attempt. The obvious thing is to make it illegal. There is no way that they will understand the intricacies of British law—indeed, the deputy mayor of Calais does not understand them—so it must be made illegal. If the Government can usefully adjust the law in terms of prosecutions, so be it, but let us keep our eye on the ball. There are literally thousands, if not many thousands, who would like to come and do this and they should be deterred.
My Lords, I associate myself with what the noble Lord, Lord Green, has just said. Clause 32 would essentially criminalise knowingly working illegally. I find it difficult to suppose that there would be much if anything in the way of the successful recovery of illegal earnings under POCA, and I can hardly think that that is the real object that underlies the proposed introduction of this new offence. Surely the real question is whether the suggested benefit indicated by the noble Lord, Lord Green—of adding this explicit new offence to the altogether more abstract existing offence of working in breach of immigration conditions, to discourage people smugglers by cancelling the message that they presently give to aspiring immigrants; namely, that there is no such existing offence here—outweighs the suggested risk of the exploitation of such workers by henceforth making it more likely that they will keep their illegal working secret. My judgment is that it does outweigh it. Therefore I support the existing clause as amended.
My Lords, I guess that the noble Lord, Lord Rosser, is regretting raising the absence of legal advice on this point. What is so wonderful about this place is that, when we look for legal advice on our proceedings, up pop a former President of the Supreme Court, a former Lord Justice of Appeal and a former Lord Chancellor. One of the great advantages of this House is that we can draw on such expertise. I am particularly grateful to the noble and learned Lords for their contributions in this regard.
In the spirit in which my noble friend Lord Deben approached this matter, which is the spirit in which we approach the Bill, we looked at whether the “reasonable excuse” amendment would be able to hold up and work. The advice that came back was that it was thought that it would not work; none the less, in Committee the noble Lord, Lord Rosser, highlighted a number of cases in which people had been brought to this country believing that they had a legal right to be here. They had been told that by an unscrupulous employer but it then became manifest that they did not have that legal right. We agreed that there ought to be some defence and have brought that forward in Amendment 48 with the words,
“knows or has reasonable cause to believe”.
I shall deal with a couple of the points that have been raised. The noble Baronesses, Lady Hamwee, Lady Ludford and Lady Lister, rightly were all concerned about the impact on potential victims of trafficking and modern-day slavery. The suggestion that the Modern Slavery Act defence applies only after a charge is not correct, as that does not reflect the operational reality. We do not accept that the defence protects victims only after arrest—that is not the case. Law enforcement officers do not pursue investigations where a defence is clearly established. For example, it is a defence to a charge of assault if a person acts in self-defence and uses reasonable force. If officers establish that at the scene of an incident, they will not arrest a person, as to do so would be a waste of resources, as the noble Baronesses rightly highlighted.
I turn to how the clause on illegal workers will work. While many illegal workers do not earn significant sums, unfortunately some, particularly the self-employed, benefit from current loopholes in the law and make a good living out of being in the UK illegally. I am sure that the point that the noble Lord, Lord Green of Deddington, raised—about those who come here and move on to asylum—will be discussed when we reach a later clause concerning the ability to work while claiming asylum. The Proceeds of Crime Act 2002 (Recovery of Cash in Summary Proceedings: Minimum Amount) Order 2006 specifies that only cash sums of £1,000 and above may be seized. This means that the illegal worker must possess cash amounting to at least £1,000 before proceeds of crime action and cash-seizing powers may be used in connection with the new legal offence. We believe that that threshold, as well as closing a loophole, and the new mens rea defence, which is required to be proved in the court for a successful prosecution to occur, give the right balance and the right defence to ensure that the types of individuals whom the noble Baronesses, Lady Lister and Lady Hamwee, and the noble Lord, Lord Rosser, referred to are not caught inadvertently by this legislation.
Amendment 44 agreed.
45: Clause 32, page 19, line 6, at end insert “—(a)”
Amendment 45 agreed.
Amendment 46 not moved.
Amendments 47 and 48
47: Clause 32, page 19, line 7, leave out “the person” and insert “P”
48: Clause 32, page 19, line 7, leave out from “when” to end of line 16 and insert “P is disqualified from working by reason of P’s immigration status, and
(b) at that time P knows or has reasonable cause to believe that P is disqualified from working by reason of P’s immigration status.(1A) For the purposes of subsection (1) a person is disqualified from working by reason of the person’s immigration status if—
(a) the person has not been granted leave to enter or remain in the United Kingdom, or(b) the person’s leave to enter or remain in the United Kingdom—(i) is invalid,(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or(iii) is subject to a condition preventing the person from doing work of that kind.”
Amendments 47 and 48 agreed.
Amendments 49 and 50 not moved.
51: Clause 32, page 20, line 1, leave out “(1)” and insert “(1A)”
Amendment 51 agreed.
Amendment 52 not moved.
Clause 34: Licensing Act 2003: amendments relating to illegal working
53: Clause 34, page 22, line 22, leave out “relevant”
Amendment 53 agreed.
Amendment 54 not moved.
55: Clause 34, page 22, line 29, leave out from “section” to end of line 32 and insert ““enactment” includes—
(a) an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978;(b) an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament;(c) an enactment contained in, or in an instrument made under, Northern Ireland legislation.”
Amendment 55 agreed.
Schedule 4: Private hire vehicles etc
56: Schedule 4, page 121, line 22, at end insert—
“( ) In subsection (1)(a)—
(a) “the Immigration Acts” has the meaning given by section 61(2) of the UK Borders Act 2007, and(b) the reference to an offence under any of the Immigration Acts includes an offence under section 133(5) of the Criminal Justice and Immigration Act 2008 (breach of condition imposed on designated person).”
Amendment 56 agreed.
57: After Clause 36, insert the following new Clause—
“Asylum seekers: permission to work after six months
(1) The Immigration Act 1971 is amended as follows.
(2) After section 3(9) (general provisions for regulation and control) insert—
“(10) In making rules under subsection (2), the Secretary of State must provide for persons seeking asylum, within the meaning of the rules, to apply to the Secretary of State for permission to take up employment, including self-employment and voluntary work.
(11) Permission to work for persons seeking asylum must be granted if—
(a) a decision has not been taken on the applicant’s asylum application within six months of the date on which it was recorded, or(b) an individual makes further submissions which raise asylum grounds and a decision on that new claim or to refuse to treat such further submissions as a new claim has not been taken within six months of the date on which the submissions were recorded.(12) Permission for a person seeking asylum to take up employment shall be on terms no less favourable than those upon which permission is granted to a person recognised as a refugee to take up employment.””
My Lords, in his reply to the previous group of amendments the Minister gave a trailer for Amendment 57. In this argument we are returning to an issue that some of us raised and spoke to in Committee. I thank the noble Lords, Lord Rosser and Lord Paddick, the noble Baroness, Lady Hamwee, and others for supporting this amendment then, and again today. The amendment does precisely what it says on the package: it gives asylum seekers permission to work after six months. It was in Committee that the noble Baroness, Lady Ludford, said—and I agree—that the other side of this coin is that an amendment of this kind would impose a duty to work, rather than simply leaving asylum seekers to eke out a pitiful existence on a monetary subvention by the state.
In his admirable book, The Home We Build Together, my noble friend Lord Sacks describes three groups of people who arrive as migrants in a foreign land. The first group are greeted by the local mayor and told that they will be given free accommodation, every possible benefit and that nothing will be required of them. They are told that they will be left to get on with it and that the community will have nothing to do with them and do not want to be troubled by them. The second group arrived and, this time, the mayor explained that there was no welcoming committee, no accommodation available and no financial support. However, if the strangers in their land had money, there was a brand new hotel in which they could stay for as long as they could pay. A third group arrived, and they were told that there was no accommodation, no benefits and nowhere to hire. But the mayor and the community provided bricks and mortar and a site where the strangers could make a home and earn a living. The mayor promised that the whole community would assist them and that they would build a home together. All of us know that the third response—a combination of generosity and self-help—is the approach that would work best. It is the approach that lies at the heart of this amendment. Amendment 57 would allow asylum seekers to be able to work if their claim is not determined by the Home Office in a timeframe of six months. Why would any Government oppose something that is based so clearly on common sense and on the principle of self-help and the removal of reliance on the state?
During our Committee debates, the Government said that they opposed the amendment because it would lead to an increase in unfounded applications. The noble Lord, Lord Ashton, who is in his place, responding for the Government, echoed what has become something of a mantra, saying:
“Earlier access to employment risks making asylum more attractive for those who are otherwise not eligible to work in the UK”.—[Official Report, 20/1/16; col. 851.]
But where is the empirical evidence for this assertion? The Government’s position is based on speculation. They previously conceded that,
“it may be broadly true”,
“there is little hard evidence that the change you propose (to allow asylum seekers to work after six months) would result in more asylum applications”.
So I agree with the Government’s earlier assertion and I wonder why they have changed their mind.
All the available evidence suggests that permission to work does not act as a pull factor for asylum seekers or economic migrants. That is reflected in the Home Office’s own research and was confirmed by a review of the 19 main recipient countries for asylum applications in the OECD in 2011, which concluded that policies which relate to the welfare of asylum seekers—for example, permission to work, support levels and access to healthcare—did not have any significant impact on the number of applications made in destination countries. Furthermore, 12 other European Union countries already allow asylum seekers access to the labour market after six months or less of waiting for a decision on their claims. These countries are Austria, Belgium, Cyprus, Finland, Germany, Greece, Italy, the Netherlands, Poland, Portugal, Spain and Sweden. The vast majority of those countries have had such policies in place for many years, and none of them has had to change the policy because of any abuse of the asylum route by economic migrants.
In Committee, the Government noted that Germany has the largest number of asylum applications in the EU and a significant number of applications from countries in the Balkans which generally do not merit refugee status, and they sought to indicate that this was connected to its policy on permission to work. However, as the NGO Still Human Still Here has pointed out, “The reason Germany has the most asylum applications in the EU is because of its Government’s publicly stated willingness to keep its borders open and to provide protection to those refugees fleeing conflict and persecution”. Furthermore, the significant number of asylum applications from Balkan countries long predates Germany’s decision to reduce to three months the time that asylum seekers have to wait before being able to access the job market.
In reality, those motivated to come to the United Kingdom for economic reasons are unlikely to make an asylum application and bring themselves to the attention of the authorities on the basis that they might be able to apply for permission to work after six months. Even if this were the case, they would never have an opportunity to do so, as the Home Office decides all straightforward claims within six months—a point made repeatedly by the Government in Committee. In summary, the Government accept that there is no evidence that the policy change proposed by this amendment would lead to an increase in unfounded applications. It is also stated that all straightforward cases, which would clearly include unfounded asylum applications, would be dealt with within six months and that the individuals concerned would therefore not have an opportunity to apply for permission to work.
The Government have developed a second line of argument against the idea contained in this amendment. In Committee, the noble Lord, Lord Ashton, told us:
“The Government believe that the current policy strikes the right balance. If a claim remains undecided after 12 months, for reasons outside their control, the person can apply for permission to work. That is a fair and reasonable policy and is consistent with our obligations under EU law. It also assists genuine refugees”.—[Official Report, 20/1/16; col. 851.]
What the House has to ask is whether, as the Government claim, the current policy is fair and proportionate, and strikes the right balance. Once again, the evidence suggests that it does not. Twenty-four other European Union countries allow asylum seekers to access their labour markets if an initial decision has not been taken on their claim after nine months, and half of those countries allow asylum seekers to work after six months or sooner. In contrast, the United Kingdom Government effectively prohibit asylum seekers from ever working, because, even after 12 months, they can apply only for jobs on the shortage occupation list, which is for skilled jobs where there is an identified national shortage. Even if an asylum seeker had the requisite skills for such a job, it is unlikely that they would be able to secure it, as they would have to have had their existing qualifications recognised and may well have become deskilled in the year or more that they had been unemployed.
Once again, this is not the policy in many other European countries. For example, Belgium, Latvia, Norway, Poland, Spain and Sweden all allow asylum seekers to work in any job, including being self-employed, once they are granted permission to work. Nor does the current policy assist genuine refugees. More than half of all asylum applications are currently provided with protection in the United Kingdom either after the initial decision or on appeal. The process of integration for these people begins when they arrive in the UK, not when the Government recognise them as refugees and give them permission to stay. An extended period of exclusion from the labour market can have only a long-term impact on refugees’ ability to find employment. The policy does nothing to encourage the principle of our duty to build a common home together.
Conversely, earlier access to employment increases the chance of smooth economic and social integration by allowing refugees to improve their English, acquire new skills and make new friends and social contacts in the wider community—all of which helps to promote community cohesion, which we should use every opportunity to nurture. I do not know how many asylum seekers Ministers have spoken to but, overwhelmingly, the vast majority of asylum seekers whom I have met want to work and contribute to society and they are frustrated at being forced to remain idle and dependent on benefits.
Finally, I return to the point I made in Committee when I referred to the experience of asylum seekers at Asylum Link on Merseyside, where I am a patron. I asked noble Lords to consider how on earth any of us would manage to subsist on just over £5 a day, which has to pay for food, clothing, toiletries, transport and any other essential living needs while an asylum application is being considered—housing and utility bills are paid for separately for those who need them. These support levels are set at rates that force asylum seekers to live way below the poverty line. In their shoes, I would probably try to find some form of income, inevitably driving some desperate people into the black economy and to act illegally—you’re damned if you do and damned if you don’t. Where is the justice, fairness or decency in that?
Where, too, is the principle of self-help that should be cherished in every free society? What effect does this enforced destitution have on those who experience it? There is absolutely no doubt that asylum seekers who have to survive solely on this level of support for extended periods of time will generally suffer a negative impact on their mental and physical health. At the end of 2015, more than 3,500 asylum seekers had still been waiting for more than six months for an initial decision on their claims despite the assurance of the noble Lord, Lord Ashton, in Committee that,
“the delays that have happened before have been brought under control”.—[Official Report, 20/1/16; col. 852.]
Indeed, the Refugee Council in a note sent to me says:
“According to the latest immigration statistics, over 3,600 applications had been without an initial decision for longer than six months. When the dependents of applicants are taken into account, that’s nearly 5,000 people living on little over £5 per day who are unable to work”.
The Home Affairs Committee stated in its most recent report into the work of the immigration directorates:
“We are concerned that the department may not be able to maintain the service levels it has set itself on initial decisions for new asylum claims within 6 months. To do so may require further funding and resources”.
In these circumstances, the current policy cannot be described as fair and reasonable. Nor is it sustainable. Those supporting this amendment include the General Synod of the Church of England, the Greater London Assembly, and many city councils including Liverpool, Manchester, Bristol, Swansea, Coventry and Oxford, the Joint Council for the Welfare of Immigrants, Still Human Still Here and the Refugee Council. Those of us who have pursued this argument from across the political divide and tabled this amendment passionately believe that Parliament should provide asylum seekers with a route out of poverty and an opportunity to restore their dignity by providing for themselves if their claims have not been decided within six months. It is underpinned by the belief that it is in the interests of both the individual and the community to build our house together. It asserts the principle of self-help, non-reliance on benefits, the duty to work, a removal of a burden on taxpayers and a repudiation of enforced workhouse destitution. In moving the amendment today, I hope that it will find favour with your Lordships and the Government. I beg to move.
My Lords, the noble Lord, Lord Rosser, who was to speak next, is indicating that he would like me to follow. I am extremely happy to support the noble Lord, Lord Alton, as we all do on these Benches. My colleagues in the Commons tabled an amendment to similar effect, and the noble Lord, Lord Alton, will be aware that this is a long-standing Liberal Democrat policy. Not so long ago my noble friend Lord Roberts of Llandudno had a Private Member’s Bill to this effect and has made countless other attempts to change the policy, even on one occasion when I asked him not to because I did not see any prospect of our winning at that time, and thought that perhaps we might not take the time of the House. But given the support of the Labour Front Bench for the amendment on this occasion, I am extremely optimistic.
I have been trying to work out what among the various briefings we have received has not been covered by the noble Lord, Lord Alton, and of course most of it has. I do not want to weary noble Lords with too much repetition, but it is worth emphasising that if the decision-making process of the Home Office was as efficient and quick as we are often told it is or is about to become, this would not be an issue at all. I tabled a stand-alone amendment at the previous stage about the requirement for asylum seekers who currently can seek permission to work after 12 months being limited to the shortage occupation list. When I looked at the list, I was really concerned that it amounted to no sort of right at all, given that asylum seekers’ existing qualifications would not be recognised in those occupations.
The noble Lord, Lord Alton, mentioned community cohesion, but I will use the word “integration” instead. Either as a society we say to people coming here, “We are putting up barriers against you”, or when we look at their claims for asylum—the word “asylum” is important in this context—we recognise that there are moral obligations regarding integration into our community. Seeking asylum is a two-way process—a contract, if you like. It is both an obligation on the part of the host country to provide asylum when properly sought and an obligation on the part of those who come here wanting sanctuary to become, in their particular way, a part of our society. Integration is therefore a hugely important aspect.
If people have the opportunity to work and if their English is not good, they will be able to practise their language skills. After all, language teaching is not easily available at the moment. However, it is remarkable how many of those seeking asylum are amazingly good at English. We should gather them up and get them working as quickly as possible using their skills both with language and in various sectors. In this way people can acquire new skills and social contacts. Looking around the House, every noble Lord taking part in this debate will be aware of how our opportunity to work after retirement age supports our own physical and mental health. I would apply that to asylum seekers as well.
I end by referring to the route out of poverty and the opportunity to regain dignity that this amendment offers, and I am delighted that these Benches will be supporting the noble Lord.
I will be relatively brief, since the case for the amendment has already been made. My name is attached to the amendment, which we will vote for if the noble Lord, Lord Alton of Liverpool, having heard the Government’s response, decides to test the opinion of the House. Its effect, as has been said, is to give all asylum seekers who have been waiting for more than six months for a decision on their asylum application the right to work on the same basis as a person recognised as a refugee.
According to the latest immigration statistics, I think for the period from September to December last year, some 3,500 applications had been without an initial decision for longer than six months. Currently, only asylum seekers who have been awaiting a decision for more than 12 months can apply to the Home Office for permission to work in national shortage occupations.
I would add only that the Government said in Committee that they had met their commitment to decide straightforward asylum claims lodged before April 2014 by 31 March 2015, and that they would decide all straightforward claims lodged from 1 April 2014 within six months. They went on to say that about 85% of cases were straightforward and that that meant that the vast majority of asylum claims were decided quickly. They also said that delays that had happened before had been brought under control.
Since the Government have said that the situation has changed for the better to a quite considerable degree in the time taken to deal with asylum claims and that previous delays have been brought under control, I hope that the Minister will be able to give a helpful response when he comes to reply. However, if the amendment is put to a vote and has the backing of the House, it will also provide the other place with the opportunity to reconsider this issue in the light of the changed situation in dealing with claims, under which the vast majority of asylum claims are now being decided quickly.
My Lords, I am grateful to the noble Lords, Lord Rosser and Lord Alton, and my noble friend Lady Hamwee. I see this whole issue as one with far wider implications than just allowing asylum seekers to work. Sometimes I get quite depressed thinking about the legacy we will hand over to our children and grandchildren. Is it a legacy where every hope has been withdrawn, or one in which there is hope even though there are difficulties?
I see this as an opportunity to extend some hope to people who are here often in desperate circumstances. It has already been mentioned that trying to exist on £36 a week is not easy. People who want to work, to contribute to the taxation of the UK, and to support their families, or who have skills that they would love to develop and extend, are people we should encourage. When the time comes—I hope we will test the feeling of the House—I ask the House to say, “Yes, we’re going to provide a beacon of hope. We’re not going to lift another drawbridge or make it more difficult”. We know that it is difficult, but I think, and I am not often a pessimist, that, in the years to come, the problems of the present day—migration, destitution, poverty and everything else—will be increased. This is our chance as a House to say that we are trying to help people and somehow provide a legacy that has at least some hope attached to it. It gives me terrific pleasure to support the amendment in the name of the noble Lord, Lord Alton.
My Lords, once again there is a balance to be struck here. On one side is the disadvantage of permitting asylum seekers to work after six months. Contrary to what the noble Lord, Lord Alton, suggested, it seems inevitable that some aspiring immigrants, at least, would be encouraged by such a provision to apply for asylum and, perhaps, to prolong the process by making what they then assert to be a fresh claim. On the other side are the benefits of enabling self-support, not to mention self-respect, by allowing this work after six months—indeed, all the various benefits so eloquently outlined already in this short debate by the noble Lords, Lord Alton and Lord Rosser, and the noble Baroness, Lady Hamwee.
Here, contrary to the view I expressed on the previous issue, the balance seems to fall in favour of the amendment. Furthermore, if, as I hope, one consequence of passing the amendment were the further speeding up of the decision-making process, that would be a most welcome additional benefit. Accordingly, in this instance I respectfully support the amendment.
My Lords, I support Amendment 57. I will not repeat all the arguments I made in Committee in support of this most basic of civil rights—the right to be able to undertake paid work. I simply want to respond to a couple of the arguments that the noble Lord, Lord Ashton of Hyde, made in response in Committee.
As the noble Lord, Lord Alton, noted in so ably moving the amendment, the main argument seemed to be our old friend, the pull factor, which dominates policy-making in this area. Since that debate, my attention has been drawn to the only piece of research I am aware of that has explored with individual asylum seekers and refugees the factors that informed their decision to seek asylum in the UK. The report Chance or Choice? by Heaven Crawley was published a few years ago by the Refugee Council. I will quote from it in the interests of evidence-based policy-making. Her broad finding was that, contrary to the assumptions on which policy is premised,
“the choices asylum seekers make are rarely the outcome of a rational decision making process in which individuals have full knowledge of all the alternatives and weigh them in some conscious process designed to maximise returns”.
Professor Crawley found no evidence from this or other research that work acts as a pull factor. Instead, she concludes that,
“the policy change introduced nearly a decade ago to prevent asylum seekers from working whilst their claim is determined has had no measurable impact on the level of applications received”.
The report said of asylum seekers,
“the inability to work was the biggest difficulty they faced in rebuilding their lives. Lack of access to work has psychological and social as well as economic consequences”.
It quoted a woman from Zimbabwe who said:
“Sometimes I just cry. It’s like I am worthless, like I am just this piece of junk”.
“My mind has gone rusty. I am not able to look at a meaningful life anymore. I look at it and I think, oh what a wasted life”.
It is terrible that people are having to feel this.
The noble Lord, Lord Alton, cited a range of cross-national evidence that does not support the argument that enabling people to work acts as a pull factor. No doubt the Minister will respond with the other argument given twice in Committee:
“It is important that we protect the resident labour market for those lawfully present in the UK”.—[Official Report, 20/1/16; col. 850.]
But asylum seekers are lawfully present until they are deemed otherwise. To suggest they are not plays into the popular tendency to conflate asylum seekers with undocumented economic migrants.
This leads to my final point. A number of noble Lords and organisations outside have expressed the fear that by denying asylum seekers access to legitimate paid work, sheer need and desperation will push them into the shadow economy where they are prey to exploitation. I raised earlier my concerns that they could now also be caught by Clause 32, which will criminalise them.
To conclude, like the noble Lord, Lord Alton, I do not believe that the Government have made their case that current policy is, to quote the noble Lord, Lord Ashton of Hyde, “fair and proportionate”. On the contrary, it is unfair and disproportionate when compared with the position in most other EU countries, and in its short-term and long-term impact on asylum seekers and refugees whose subsequent integration into British society is impeded by it, as we have already heard. As Ian Birrell, former speech writer for the Prime Minister, wrote earlier this week:
“The key is to let refugees work legitimately, so they can build a fresh start—wherever they are. After all, what human being wants life trapped in limbo … Refugees may have escaped hell, but that does not mean we force them into purgatory”.
It feels as if, too often, we do just that. This amendment would help asylum seekers out of the purgatory of enforced idleness and impoverishment.
My Lords, I, too, support this amendment. I frequently find myself addressing immigration issues at public meetings because these issues are in the public’s mind and attract a lot of attention, particularly in relation to law. As soon as you draw the distinction between economic migrants and those seeking asylum, the public always recognise the importance of the ability to work, and support it. There is a misconception among politicians’ and public commentators’ understanding of the public mood on this issue. The public generally think it is right that those seeking asylum should have the opportunity to make a life, to work and to have that dignity which everyone has spoken about. They do not see this as just a compassionate issue but as one of good sense in relation to this country and its needs. I urge the Minister to look at this issue carefully, especially given the speed with which these applications are now being dealt with, as the Labour Front Bench mentioned, and which we commend. This is one of the ways in which we can show that we are capable of making a distinction between economic migrants and others; that we will not allow this confusion to arise in the public’s mind; and that we recognise the public’s desire to ensure that those seeking asylum, to whom we are giving a home, should have the opportunity to live among us, work, and thereby make a contribution to their own lives.
My Lords, I support the comments made by the noble Lord, Lord Alton, and by other noble Lords and reinforce the points that have just been made with regard to the attitude of the general public towards genuine refugees. They would much prefer that these refugees are enabled to make a contribution to the economy and to the social life of the community into which they move. This was reinforced in my mind the other night—as it possibly was for other noble Lords —when a refugee who was a pharmacist was shown on a television programme. One thinks of the contribution that he could make with those skills, which we need. We are silly not to maximise those opportunities. For those reasons, I support the amendment.
My Lords, I, too, support the amendment. I declare an interest as senior rabbi of the West London Synagogue, where we run in a drop-in service for destitute asylum seekers, as many synagogues and churches do around the country. Many of these asylum seekers have waited longer than six months. The way they survive—because you cannot survive on £5 a day—is by going from institution to institution—church to synagogue—getting handouts: that is, charity. They hate it. We do our best to make them feel welcome, but it is not what they want to do. They want to work and make a contribution. They do not want to set their children an example of effectively begging. One of the things that we give them, in addition to a decent meal and friendship—I hope—are second-hand clothes. On the rare occasions that we have enough shoes to put out, they go as if a plague of locusts has entered the room. Asylum seekers who are living on £5 or less a day cannot afford to get their shoes repaired, let alone get new ones. They walk absolutely everywhere and they go through shoes at the rate of a pair a week.
People need to understand what it is like to be in that circumstance and to realise that these people do not wish to live like that and it is not their fault that they have waited for longer than six months. I support the amendment very strongly.
My Lords, I support the amendment and endorse everything that has been said already, and reinforce the point that the General Synod had a major debate on this and overwhelmingly supported such a move.
Some of the saddest conversations I have ever had have been with asylum seekers who came to this country and thought they would be welcomed, but have felt unwelcome; who want to be able to uphold their human dignity and feel that the best way of doing that is to become contributors to this society. I would like to draw attention to proposed new subsection (2) and the phrase “voluntary work”. There should be paid work, absolutely, but I have talked to many asylum seekers who say, “I’m not even allowed to go and voluntarily help somebody else”. This is appalling. This amendment needs to be accepted.
To deny those who came here at the turn of the century was abhorrent. Later on, before the Second World War, people came here as refugees and they were accepted. Of course, there was a minority of people who denied their status but they were not heard. The compelling voice of the majority prevailed and they were accepted. More than that, most of them have provided a huge benefit to this country and I hope the Government will recognise that.
What the Government are proposing is wrong-headed. The noble Lord, Lord Bates, is a decent man and I hope he will realise that there is a need here for second thoughts. As has been said already, the denial of hope, which this amounts to, is wrong. Hope must be compelling, and authoritative. We must permit some hope, as has already been said, to certain asylum seekers within the provisions of the amendment. The onus of disputing this must fall heavily upon the Government. I hope that ultimately, they will see sense because that is exactly what the majority of this House recognises—hope.
My Lords, the noble Lord, Lord Alton, made the best case that could possibly have been made for his amendment. He was very effectively supported by many others: the noble Lord, Lord Roberts, and the noble Baronesses, Lady Lister and Lady Neuberger. Clearly, there is, if you like, a human case to be heard and I am glad that it has been heard. But again, if I may say so, there are some wider aspects that also need to be taken into account. First, not all people who seek asylum are in fact genuine. The record is that 50% turn out not to be, so we have to have that in mind when we consider the people who are making applications.
Secondly, the most recent EU directive requires that there should be access to the labour market after nine months, and it is now proposed that we should go to six months and be on the more generous side among EU nations. It is perfectly fair to make that point, but mention was made of Sweden, which has had a very large number of applicants—much larger than most countries in Europe. Until recently, Sweden allowed all asylum seekers to work from the time that they arrived. Without question, that was a major reason why there was such a large inflow to Sweden, and it is why the Swedes were obliged recently effectively to try to close their borders.
One problem with going to six months is that it could become almost an incentive to asylum seekers to spin out their cases. If they could make enough appeals to slow up the process, then they would be able to go out to work. So there is some risk there.
However, my main point is that this is really almost an extraordinary time to propose this change. I mentioned earlier the thousands who are queuing up in Calais; these are not desperate people but people who are already in a safe country—that is the fact of the matter —and it would be entirely open to them to claim asylum in France, which is what both Governments are now trying to encourage. Really, we should not do this now. It should be our objective to reduce the pull factors—and pull factors do exist, even if one does not like the term—not to increase them.
My Lords, powerful arguments have been made in favour of the amendment, led by the noble Lord, Lord Alton, who made an excellent speech. He was kind enough to quote what I said in Committee, and I want to return the compliment. In Committee, he said that,
“alleviating destitution amongst asylum seekers is a prerequisite if we believe in the upholding of a person’s human dignity. The right to work is fundamental to this”.—[Official Report, 20/1/16; col. 843.]
So, extremely importantly, this is not just about self-reliance and retaining skills for the benefit of the person and society—bearing in mind that a high proportion of these people will go on to live for many years, or possibly for the rest of their lives, in this country, so what is not to like about them retaining their skills?—it is also about human dignity.
It seems to me that much of what we are discussing in this Bill is a kind of displacement activity for what should be the core function, which is to apply immigration law efficiently and effectively. If asylum claims were determined as swiftly as possible, while allowing for people’s rights to be respected, many of these problems would not arise. Illegal renting or driving and all this outsourcing of immigration control would be unnecessary. We keep having to come back to the main issue: whether the UK Border Agency, or whatever it is now called in the Home Office—sorry, I forget, but my past is not in domestic immigration law—is efficiently assessing asylum claims.
I say to the noble Lord, Lord Green, that I do not think that anyone is proposing, and the amendment is certainly not proposing, that people should be able to work from the day they arrive; it would be after six months. So, with respect, the Swedish experience is not really relevant to this debate.
I understand that the noble Lord, Lord Ashton of Hyde, said in Committee that UK policy is,
“fair and reasonable … and is consistent with our obligations under EU law”.—[Official Report, 20/1/16; col. 851.]
Unless he knows otherwise, I understand that we do not have any obligations under EU law in this area because we are not opted into the so-called reception conditions directive, which, as the noble Lord, Lord Green, said, obliges other EU countries—and would oblige us if we were opted in—to allow work after nine months. We are not bound by that directive or, as I understand it, any other provision of EU law because we have opted into only some EU asylum directives, and not that particular one. We are entirely free, so please, for once, can we not blame Brussels for what we are doing in this area? As the noble Lord, Lord Alton, said, 12 countries allow working after six months, but all those other EU countries which are bound by the reception conditions directive, and do not have the choice the UK has, are of course obliged to allow working after nine months. We should not pray in aid EU law in this particular area.
All rational arguments are in favour of allowing the right to work—those based on human dignity and self-reliance, as well as the economic points and the fact that public opinion understands that people are trying to support themselves and not scrounge off the taxpayer, if £5 a day can be called scrounging off the taxpayer. The only argument attempted against it is that it would be a pull factor—our “old friend” the pull factor, as the noble Baroness, Lady Lister, said. I cannot understand how it can be argued that someone who is working illegally would deliberately make themselves known to the authorities by claiming asylum. I understand that the noble and learned Lord, Lord Brown, suggested that sometimes people claim asylum after they are discovered working illegally, but that is quite different from deliberately claiming asylum when you are working illegally undetected. Why would you then claim asylum and bring yourself to the attention of the authorities in order to get the right to work?
The answer to that, as I said at the beginning, is to apply the law more efficiently. There is every benefit in making things above the law and in regularising people’s right to work. The more we can bring people into the light of day—what they are doing, whether they are legally in the country and whether they have a right to work—the better for enforcement. What is so pernicious for public confidence in the asylum system is the idea that so much of what is done is not being properly regulated, enforced or managed. That is where the concentration and the focus has to be. Like my noble friend, I fully support this amendment.
My Lords, I will be brief and make a couple of very quick points. There have been references to bogus asylum applications. If there are such applications, we should not punish those who are sincere and make valid ones. Equally, this amendment addresses a human rights obligation. Every civilised society is judged by how it treats those most in need. In this respect, the Government are sadly wanting and I urge them to accept this amendment.
My Lords, I begin by paying tribute to the noble Lord, Lord Alton, for the way that he moved his amendment. Nobody could be unmoved by the way in which he presented the arguments, or by his clarity and compassion. They were very persuasive. Before I put some remarks on the record, I will just say—very carefully and respectfully—that as I was sitting here listening to the debate, I was wondering whether perhaps your Lordships did not quite understand what is happening or being proposed here. It is not being proposed in the Immigration Bill before us today that somehow we change the law so that asylum seekers who were hitherto able to work and earn a living are no longer going to be able to do so. That is not what is being proposed in the Bill.
In fact, up until 2002, it was an established policy that people could stay and work after six months. Forgive me for using party tags here, but I hope that the House will bear with me; I am not trying to make undue party-political points, but I want to set out the complexity of the issue. Then, in 2005, the previous Labour Government, as a result of opting into the 2003 EU receptions conditions directive, which sets out the minimum benefits and entitlements afforded to asylum seekers while they await a decision on a claim, changed the Immigration Rules, allowing asylum seekers to apply for permission to work in the UK if they had been waiting for more than 12 months for an initial decision on their case. That was the choreography: we are not talking about a proposed change now—this was changed back in 2005 under the previous Labour Government.
I know that the noble Baroness, Lady Ludford, is itching to come in, but I ask her to bear with me, because I am about to come to the coalition. Then, in 2010, during the coalition, a case went before the Supreme Court on the issue, and the coalition Government subsequently changed the Immigration Rules from those set out by the Labour Government to reflect the Supreme Court judgment, as would be expected. At that time, they introduced the provision restricting asylum seekers’ jobs to the shortage occupation list.
I set that out because it is important, when we hear persuasive and passionate speeches—I accept that they are persuasive and passionate—about the very vulnerable group of people who come to this country seeking international humanitarian protection because of a well-founded fear of persecution, that we bear in mind that we do not propose to change the rules. The amendment would change the rules back to the situation that existed not under the coalition, but pre-2005, under the then Labour Government.
The Minister kindly gave me an opening. I do not want to be an EU bore—although I guess I am—but whatever the Labour Government did, which I do not agree with, EU law in the previous reception conditions directive said that you had to allow asylum seekers to work at least after 12 months. There was nothing whatever to stop a Government allowing asylum seekers to work after six months. The Government have not opted into the new receptions conditions directive 2013; they did not follow the habit of previous Governments. That is the one that says that you have to allow asylum seekers to work after nine months—but you can let them work after three months if you want.
That is absolutely right; I am not dissenting from that; that is the one that we decided not to opt in to under the coalition Government. My point was that when the Labour Government introduced the provision, it was fully compliant with the 2003 EU directive and met the terms and conditions. Of course, it can be relaxed. As the noble Lord, Lord Green, said, we could go to the extent of Sweden’s position as it operated it, where people could enter the labour market immediately on claiming asylum. Of course, we all know that Sweden has some of the highest numbers of asylum claimants, so we should not somehow be vilified for claiming that that might be a pull factor when the evidence seems to suggest that the terms and conditions might act in that way.
Having set out for the benefit of the House the fact that we do not propose to change a position that obtained under the coalition and was introduced by the previous Labour Government, I want to set out the argument for noble Lords to consider.
First, while awaiting a decision, asylum seekers receive free accommodation and a cash allowance; they have all their living needs met, in terms of utility bills, and have access to education and skills and our health services. Also, to answer the point made by the right reverend Prelate the Bishop of Durham, they can undertake volunteering activities while their claim is outstanding, and we are exploring ways in which to support that. This approach also assists genuine refugees. It is common knowledge that some people make unfounded claims. The figure of 61% is the figure that we have of initial claims that are refused. It is reasonable to assume that some do so because of the benefits, real or perceived, that they think they will gain here. Earlier access to employment risks undermining the asylum system by encouraging unfounded claims from those seeking to use the asylum system as a cover for economic migration.
The amendment would create further incentives for asylum seekers to choose to try to come here. In Europe we have seen the effect that those policies can have in driving migrant behaviour. The numbers choosing to live in squalid conditions in Calais, hoping to enter the UK illegally, rather than seeking protection in France, is testament to that fact. Allowing access to work after six months would be more generous than many other member states. The noble Lord, Lord Alton, referred to some—but it would certainly be more generous than some and more generous than is required under the current 2013 directive on reception conditions to which the noble Baroness referred. We should not do anything at this stage to encourage more people to risk their lives to undertake dangerous journeys to come across Europe instead of claiming asylum in the first safe country that they reach.
In the great majority of cases, asylum seekers receive a decision within six months, so we should think carefully about the particular asylum seekers whom the amendment would benefit. That would include those who were themselves responsible for delaying the consideration of their asylum claim. It could be argued that it could provide a perverse incentive for people to institute delays. It would also include those complex cases where there are good reasons, often related to serious crimes, established or alleged to have been committed by the claimant, why a decision on an asylum claim cannot be reached within six months. Those are the asylum seekers to whom the amendment would accord preferential treatment at the expense of UK residents, including refugees seeking employment here.
Again, I accept that the arguments in favour of the amendment are well made—not emotive, but clearly touching an emotion. The vast majority of asylum seekers come here to seek our protection and we expedite their assessment. When they come to this country, they come under our obligations under the refugee convention and the 1951 Act, which says that we must offer protection and humanitarian assistance. The argument was that when people entered into the labour market they would need to be provided with national insurance numbers and tax reference numbers as well, potentially, as pay roll numbers, all of which might mean that if their claim is not upheld and well founded, it is more difficult for them to be removed from the country. The other argument is that there are also 1.5 million people who currently do not have employment in this country, and it might be argued that somebody could go for a job in a particular location and find that they do not get that job because it is offered to somebody who is here on an asylum basis. They may feel some upset that people to whom we are offering humanitarian support are somehow put ahead of them in the jobs queue, which would be unreasonable.
Those are the broad arguments that can be presented on this issue. The essential one that I would ask noble Lords to reflect on is that in this Bill we seek to provide a protection of the existing laws governing immigration in this country, recognising that there is a great migration crisis on and many people are seeking to make their way through Europe on this journey. We are seeking control of migration flows into this country. Therefore, now is not the time to change rules that were introduced in 2005 by the Labour Government and which were then refined under the coalition Government. Now is not the time to make this change—and I urge the noble Lord to consider withdrawing the amendment.
My Lords, the Minister was good enough to say at the outset that he thought that I had put a persuasive case—but clearly not persuasive enough to change his mind. The argument that this is not the time is one that we are all familiar with. I have heard it in both Houses of Parliament over the last three or four decades, again and again. Now is never the time. I was surprised by the Minister’s argument that if we were to pass this amendment we would be more generous than we are required to be. Those were his words. We are talking about £5 a day to subsist, instead of giving people the opportunity to do a job. If they are here illegally, they will not be taking somebody else’s job, because they will be deported. If they are here illegally, they are not becoming part of what he described as a perverse incentive for criminality—they will be deported. Our rules are quite clear. As the noble Baroness, Lady Lister, said, they are not here illegally; they are asylum seekers. As the noble Baroness, Lady Kennedy of The Shaws, said, the public understand the difference between people who are here illegally and trying to cheat our system and people who are genuine asylum seekers and who should be considered on the merits of their applications.
We have heard some extraordinary speeches, and I remind the House that we have heard only one speech against these amendments during the course of the debate, from my noble friend Lord Green. My noble and learned friend Lord Brown of Eaton-under-Heywood put the point that there was a balance of arguments. He, with his extraordinary legal experience, came to the conclusion that on balance it would be right to support this amendment and, in doing so, was echoing a point made by the noble Lord, Lord Rosser, from the Opposition Front Bench—that we will be incentivising the Home Office. We will be ratcheting up the process to deal with these applications to put them through within the six-month period because, if we do not, they would have the opportunity to go after a job and to do that job until the asylum application has been dealt with.
My noble friend Lord Wigley said that public opinion knows the difference between illegal migrants and asylum seekers, and that people who have skills will be deskilled—he referred to a pharmacist—if they are not given the opportunity to work.
Many other noble Lords have contributed to the debate, and I know that the House is now keen to reach a conclusion. I end by reminding the House of the vivid description that my noble friend Lady Neuberger gave during her remarks, when she talked about how like a swarm of locusts people will swoop on second-hand shoes, because they are so bereft of basic income or resources or the basic things to keep life and limb together. The noble Lord, Lord Roberts of Llandudno, said that this amendment is about hope for people of that kind. Hope was the one thing left in Pandora’s box—and here I do agree with the Minister. We are witnessing mass migration on a huge scale. This amendment, sadly, is unable to deal with that; it is far beyond its scope. What it will do is to offer some hope or support for people who find themselves in a position where their human dignity has been utterly degraded. Therefore, I seek the opinion of the House.
58: After Clause 36, insert the following new Clause—
“Overseas domestic workers
(1) For section 53 of the Modern Slavery Act 2015 (overseas domestic workers) substitute—
“53 Overseas domestic workers
(1) Immigration rules must make provision for leave to remain in the United Kingdom to be granted to an overseas domestic worker.
(2) Immigration rules must make provision as to the conditions on which such leave is to be granted, and must in particular provide—
(a) that the leave is to be for the purpose of working as a domestic worker in a private household;(b) for a person who has such leave to be able to change employer, registering such change of leave with the Home Office.(3) Immigration rules may specify a maximum period for which a person may have leave to remain in the United Kingdom by virtue of subsection (1), and if they do so, the specified maximum period must not be less than 2½ years.
(4) Immigration rules must provide for a period during which no enforcement action should be taken against such an overseas domestic worker in respect of his or her—
(a) remaining in the United Kingdom beyond the time limited by his or her leave to enter or remain, or(b) breaching a condition of that leave relating to his or her employment if he or she wishes to change it.(5) The Secretary of State must issue guidance to persons having functions under the Immigration Acts about the exercise of those functions in relation to an overseas domestic worker who may be a victim of slavery or human trafficking.
(6) The guidance must provide for an overseas domestic worker remaining in the UK for more than 42 days to be required to attend a group information session as defined in that guidance, within that period.
(7) In this section—
“enforcement action” has the meaning given by section 24A of the Immigration Act 1971;“immigration rules” has the same meaning as in that Act;“overseas domestic worker” means a person who, under the immigration rules, has (or last had) leave to enter or remain in the United Kingdom as—(a) a domestic worker in a private household, or(b) a private servant in a diplomatic household.””
My Lords, most employers who visit the United Kingdom, bringing their domestic workers with them on a tied visa, behave decently. A minority, however, do not. That is why since the early 1990s cases have been coming to light of unpaid wages, payment of less than the national minimum, withheld passports, no free time, intolerable conditions and physical and mental abuse—even rape. Because of these, I commend to the Minister the brief that I received today from a group of lawyers called the Anti Trafficking and Labour Exploitation Unit. They cite two cases of awards of more than £250 million but warn of the difficulties and delays in taking cases through the national referral mechanism. They also criticise delays in obtaining residence permits from the Home Office.
Before going further, I thank the last Government for appointing Mr James Ewins QC to review the working of the visa. I am grateful to him for his recommendations, which we discussed briefly in Committee on 20 January. I thank the Minister for saying then that there was a problem to be addressed because of the special vulnerability of these workers, living as they do on their employers’ premises. I also thank the Minister for arranging several meetings, including a large one at the Home Office with the reviewer and the anti-slavery commissioner. The Minister has shown throughout that he listens and wants to conciliate. He has carried out his commitment by getting the Home Office to produce a three-column Written Statement dated 7 March.
The Statement candidly admits that the Government have taken the advice of the anti-slavery commissioner rather than implementing in full the recommendations of the review. The weakness of that decision is, first, that it allows the domestic workers to find alternative employment only during the balance of their original six-month stay. In practice, that is likely to be just a few months or weeks. Few employers will want to take someone for such a short time—all the more if they have no references from an employer here. There is therefore a serious risk that the worker leaving their original job will become destitute and then be deported. The Government have failed to produce, in the very words of the Statement,
“an immediate escape route from abuse”.
They have gone back on the strong hopes of Karen Bradley MP, who was the Conservative Minister in 2015 and who wanted the review recommendations to be implemented.
The second weakness is that the Minister in Committee and in the recent Statement relies heavily on the national referral mechanism, which was never designed to deal with the problems of tied domestic workers. They enter this country perfectly legally with their employers, whereas most trafficked and enslaved people come in illegally or as sham visitors or students. Some slaves may have been trafficked within this country, usually from one brothel to another. I therefore ask: how many overseas domestic workers’ cases has the NRM handled? How many employers have been prosecuted or banned from importing domestics as a result? Lastly, have some workers received compensation or extensions of stay as a result of the NRM? One can say that the mechanism is not entirely relevant to the wrong we seek to address; it is not suited to important hardships that may be less than crimes. How are workers even to know that the NRM exists?
I now come to Amendment 58 itself. This proposed new clause amends the Modern Slavery Act to give full effect to the recommendations of the Ewins review of the ODW visa. It gives clear directions about the changes needed to the Immigration Rules, which currently tie the incoming domestic worker to a single named employer, thus making them highly vulnerable to abuses and exploitation and, sometimes, to conditions of complete slavery. This amendment is better than the one that I spoke to in Committee; it does not provide for indefinite leave to remain but specifies not less than two and a half years. This is made up of the original six months provided by the tied visa plus a further two years, which Mr Ewins considered necessary to enable the worker to find alternative domestic work. Proposed new subsection (2)(b) would require changes of employer to be registered with the Home Office, thus keeping track of the worker and making action possible against some employers. Proposed new subsection (6) meets a most important Ewins recommendation, namely that domestic workers who stay here for more than six weeks should have group information sessions. This gives a chance to check that the national minimum wage is paid, that passports are not withheld, and that conditions are generally reasonable.
I have outlined the purpose of our amendment, which, I submit, is better and more tightly drafted than those previously discussed. The scandal of abuse, exploitation and slave-like conditions has gone on for far too long, with impunity, and in the most prosperous parts of London. This scandal has been strongly criticised by voluntary groups, churches, law centres, trade unions and some Members of the other place. Now is the time to improve the Modern Slavery Act so that this country can hold up its head, safe from reproach because it has done everything possible to end an admitted wrong. I beg to move.
My Lords, I find myself preceding the noble Lord, Lord Rosser. Again, I am delighted to support this amendment and that my noble friends are doing so.
The government Statement, with its proposals as to how to respond to James Ewins’s report, does not seem to redress the power imbalance which he identified in his report. I must not let the opportunity go by—I should have started by saying this—without congratulating the Government on appointing Mr Ewins and congratulating Mr Ewins on his splendid report. The Government’s Statement, to which the noble Lord has referred, was at first attractive. I changed the notes to my colleagues last night after I had read through it again, thought about it more and become, I am afraid, less attracted to it. I am not persuaded that without a right to apply for an extension to the visa—for the reasons that Mr Ewins gave, which I will come back to—the Government’s proposals will work. That proposal seems to be the linchpin. His recommendation is to entitle overseas domestic workers to be granted the right to change employer but also to provide for annual extensions provided that they are to work as domestic workers in a private home for up to two and a half years in total. He says in his report that he considers it,
“both impractical and invidious to discriminate between seriously abused, mildly abused and non-abused workers”,
“there is a real possibility, perhaps likelihood, that many overseas domestic workers will not avail themselves of that right … for those who are abused in any way at all, the universal right will give them a real and practical way out of that abuse without the current possibility of a subsequent precarious immigration status and threat to livelihood”.
He acknowledges that,
“an unintended consequence may well be that there are those who avail themselves of the universal right without having suffered any abuse at all”.
However, referring to pre-2012 figures, he says that the number of workers is likely to be low, and that,
“by legitimising their status, they will continue working, paying tax, and will be visible to the UK authorities during their extended (but limited) stay”.
With all the work done with overseas domestic workers over the last few years we have learned that that visibility is very important. To come to the balance, this takes us back to some of the arguments made on the last amendment:
“Such an unintended consequence is of limited detriment compared to the benefit of the central intended consequence”.
The second major recommendation is with regard to information sessions. Like the noble Lord, I was glad to have the briefing from the Anti Trafficking and Labour Exploitation Unit, which, on the basis of its experience, has described to us that the complexity of the information that is required needs what Mr Ewins proposes more than what the Government propose. It considers that most domestic workers, faced with items that would be included in those information sessions—which it enumerates over a third of a page of bullet points —would choose to stay in abusive situations rather than take the risk of escaping. As it says, the right to change employer is not clear, concrete and simple. It also comments about the national referral mechanism, which is of course a part of this whole picture. As I say, I congratulate the Government on having appointed Mr Ewins and having made an attempt, which I recognise, to meet the situation with the Written Statement a few days ago, but we are not there yet.
I am very pleased to support the amendment moved by the noble Lord, Lord Hylton. This House has shown on previous Bills and in previous Sessions its concern for this group of workers. I hope that we will do the same again tonight.
My name is also attached to this amendment, which we support and for which we will be voting if the noble Lord, Lord Hylton, having heard the Government’s response, decides to test the opinion of the House. The noble Lord has made a powerful and persuasive case, as indeed has the noble Baroness, Lady Hamwee. I do not intend to go over again all the arguments that have been advanced but shall just reiterate one or two.
The amendment is intended to implement the terms of the Ewins Independent Review of the Overseas Domestic Workers Visa. The Conservative Minister said in the Commons:
“I cannot commit a future Government, but the intention is that whoever is in government—I very much hope it will be the Conservatives—will implement the review’s recommendations”.—[Official Report, Commons, 17/3/15; col. 650.]
This amendment enables the Government to deliver on an intention declared by a Conservative Minister during the passage of the then Modern Slavery Bill.
Mr Ewins stated in his review that his recommendations were the minimum necessary to protect overseas domestic workers, but the Government have indicated in their recent letter that they intend to implement less than that minimum. They say that Mr Ewins identified gaps in the evidence available. That is true, but Mr Ewins looked at the evidence that was available and made recommendations based on it. Rather than accept those recommendations, which largely confirm the arguments put forward during the passage of the then Modern Slavery Bill, the Government are proposing their own courses of action.
One is that all domestic workers should be allowed to change employer but only within the currency of the six-month visa. The Government say that their proposal acknowledges the case put forward for providing overseas domestic workers with an immediate escape route from abuse. However, one has to ask what the prospects are of changing employer if you have to say to a new employer that you are permitted to stay in the United Kingdom only for an absolute maximum of six months and very likely much less than that, as such overseas domestic workers would be very unlikely to decide to move from their current employer immediately. I suggest that the chances are likely to be slim and, without work, how would such an overseas domestic worker manage to live without falling back into exploitation and abuse, as there would be no recourse to public funds?
A six-month visa restricted to domestic work in a private household is no help to a vulnerable worker looking for a good employer. In reality, who would employ someone for less than or up to six months for childcare or care work? From a commercial point of view, who would employ someone for six months or less in a childcare or housekeeping position? It is just not long enough, especially since, as the noble Lord, Lord Hylton, said, the new employer would be highly unlikely to be able to get a reference from the previous employer.
An overseas domestic worker is more likely to report the abuse if they have left the control of the employer concerned and have relative security. That is what Mr Ewins’s recommendations were designed to achieve—recommendations which the Government appear to have either rejected or, at least, not accepted. Mr Ewins concluded the following in paragraph 10 of his review:
“On the balance of the evidence currently available, this review finds that the existence of a tie to a specific employer and the absence of a universal right to change employer and apply for extensions of the visa are incompatible with the reasonable protection of overseas domestic workers while in the UK”.
This amendment seeks to provide in the Bill for the implementation of the Ewins review recommendations through the Immigration Rules, and it is an amendment that we support.
My Lords, I take a different view on this and I do not apologise for doing so. I accept that the motivation is entirely well intended but I fear that it is completely impractical. Anyone who has been involved in issuing visas overseas will be astonished by this proposal. It would provide what will be seen by many as a wide-open door to the UK.
Earlier, the question was raised as to why the Government had not accepted the report from the reviewer. They could not have foreseen that the reviewer would simply deny that there were implications for immigration control, but there most certainly are. This is an invitation to anyone who comes here on a visa as an overseas domestic worker to leave their employment whether or not they are being abused. If they were being abused, of course I would support the idea that, through the mechanism that now exists, they should be helped, looked after and given time to organise their affairs. But the amendment says that any of the 17,000 workers who come here as domestic workers can leave their employment at any time and stay on for another two years with another employer. And then what? They will probably disappear. That is amazing and it cannot possibly be a basis for government policy.
My Lords, this amendment brings us to the issue of how best to protect the interests of those who are admitted to the United Kingdom as domestic workers and how the Government plan to respond to the Independent Review of the Overseas Domestic Workers Visa, produced by James Ewins.
When we discussed similar amendments in Committee, I undertook that the Government would clarify their position on Report. I am pleased to be able to say that we have done so. The Minister for Immigration and the Minister for Preventing Abuse, Exploitation and Crime made a Written Ministerial Statement on 7 March setting out the Government’s response to Mr Ewins’s key recommendations. The meeting we had on 11 February at the Home Office, to which the noble Lord, Lord Hylton, referred, to discuss these issues was also attended by the Independent Anti-slavery Commissioner and Mr Ewins, and it greatly assisted the Government in coming to their final view.
The key issue is the proposal that we relax the employer tie. Mr Ewins proposed that we do this by permitting those admitted as overseas domestic workers to change employer and to be granted an additional two years’ stay for this purpose. The amendment before noble Lords would appear to go slightly further by providing for an additional two and a half years to be granted for this purpose.
The Government have considered this matter carefully. We have come to a somewhat different view of how best to approach it, but it is one that I hope will meet with the approval of your Lordships. Our primary aim is to ensure that, where abuse takes place, it is brought to light so that victims can be supported and action can be taken against perpetrators. Our concern is that if overseas domestic workers enjoyed an unconditional freedom to change employers and extend their stay for as long as two years, this would undermine the national referral mechanism and perpetuate a revolving door of abuse. The Government have also noted the view of the Independent Anti-slavery Commissioner that such arrangements might create a situation in which the trafficking of victims between employers flourished more easily.
The Government are proposing two changes in response to James Ewins’s proposal. First, they acknowledge that overseas domestic workers should have an immediate escape route from abuse. We will therefore, as the Independent Anti-slavery Commissioner has proposed, allow those admitted as domestic workers to take alternative employment as a domestic worker during the six-month period for which they have been admitted. Their entitlement to change employer will not depend on whether they have been a victim of abuse and they will not need to make an application to the Home Office for permission to do so, although we will wish to encourage notifications of any changes of employment. Secondly, we will increase from six months to two years the length of the extension of stay that can be granted to an overseas domestic worker who has been confirmed as a victim of slavery or human trafficking.
Taken together, these measures strike the right balance between ensuring that overseas domestic workers have a “self-help” remedy and ensuring that the national referral mechanism is not undermined. This approach will also complement the action that the Government have taken under Section 53 of the Modern Slavery Act 2015 to protect against enforcement action those identified as potential victims of abuse, and to provide actual victims of abuse with greater certainty as to their immigration status. By contrast, and contrary to the current provisions of Section 53, the amendment before noble Lords would appear to protect overseas domestic workers against enforcement action, irrespective of whether they had been the victims of abuse. That approach may simply invite wilful abuse of the terms on which such workers are admitted.
It is common ground between the Government and the proposers of this amendment that Mr Ewins’s recommendations concerning information, advice and support meetings should be adopted. The Government have made it clear that they will implement these recommendations as soon as possible. The amendment, however, seeks to impose a requirement to attend such meetings through guidance issued to immigration staff. It is not entirely clear how that would work, and the Government have indicated that they intend to go much further.
We will place the requirement to attend such meetings within a wider scheme of controls aimed at enforcing the obligations placed on the employers of such workers. We will do so by introducing a system under which such employers must be registered with UK Visas and Immigration. If employers fail to comply with their obligations, we will be able to consider striking them off the register so that they will no longer be able to sponsor the admission of domestic workers. The existence of such a register will send a powerful deterrent message to those employers who may otherwise doubt the seriousness of our intention to root out abuse.
The Government have made it clear that they will implement the planned changes through changes to the Immigration Rules. No amendment of primary legislation is required. The Government consider their response to the independent reviewer’s report to be a coherent approach to the issues, balancing the need to encourage those who are victims to access the national referral mechanism, the need to provide support to victims where they are identified, and the need to adopt more measures to deter employers who think the system is blind to their activities.
The noble Lord, Lord Hylton, asked how many cases involving overseas domestic workers had been handled by the national referral mechanism. Between January 2009 and December 2015, there were 80 positive conclusive grounds decisions under the NRM in respect of non-EEA nationals admitted as overseas domestic workers. Those admitted as overseas domestic workers accounted for 3% of all NRM referrals between July and December 2015. Of those overseas domestic workers in the NRM process, so far about 30% have obtained a positive conclusive grounds decision and at least 29 referrals still await a decision.
How many overseas domestic workers have received compensation or an extension of their visa as a result of having entered the NRM process? We do not have figures for what proportion have received a conclusive grounds decision under the NRM and have also been granted an extension of stay. If we can establish that figure, I will write to the noble Lord. How many employers have been prosecuted or banned? No reliable figures are available for this. In fact, in his report, James Ewins referred to the absence of information available to him.
I think I have covered most of the points and questions that were raised. From what the noble Lord, Lord Hylton, has said, I have picked up that he intends to press his amendment and that no matter what we say it will be very difficult to move him on that. However, I personally firmly believe that his amendment would put more people at risk than the current policy, as set out and amended, before us today—it is a carefully considered mechanism. I ask the noble Lord and the Opposition to think very carefully about that. They are proposing that there should be no obligation for people to go through the national referral mechanism, but if they do not, we do not have a record of who employers have been carrying out this abuse on. It is a revolving door for abuse: the employers can go on abusing and go on bringing people in, and they will not be prosecuted. That is a tragedy and a complete failure, not just for the people who are here but for those who are going to be brought here in the future.
Under the national referral mechanism, people get access to a whole range of benefits provided by the Salvation Army. They get safe accommodation; emergency medical treatment; material assistance; access to a complaints service; translation and interpretation services; information and signposting; advocacy for specialist services; access to education for dependent school-age minors; and transport services. They get access to all those things but under this amendment they would not.
The noble Lord asked me in Committee if we would organise a meeting and invite James Ewins. We did better than that: we invited James Ewins and we also invited Kevin Hyland, whom we appointed to act as the Independent Anti-slavery Commissioner and who enjoys widespread respect in this House for clamping down on trafficking. Do you know what he said at that meeting on 11 February? The noble Lord, Lord Hylton, heard it as clearly as I did. He said he feared that by adding another two years to the time that people could stay here, they would be made vulnerable to the trafficking gangs that all our modern slavery legislation has been introduced to mitigate.
Having seen the vote on the previous amendment, I know that the noble Lord has the numbers to get this amendment through. However, I urge him to think carefully about whether this will make people safer. Fewer people will be prosecuted because we will not know about them, more people might fall victim to the trafficking gangs, and fewer people will get access to the type of services provided by the Salvation Army. I ask the noble Lord to think very carefully on that before he presses his amendment.
Mr Ewins’s report, and his presentation at that meeting and on other occasions, was very impressive. Has the Minister discussed with him the balance between the prosecution of employers—who in this case, as I understand it, are domestic individuals and not gangs of traffickers—and the protection of individuals? Mr Ewins proposed extending the visa. Does the Minister know Mr Ewins’s view on whether taking the route proposed by the Government instead will mean that more victims will come forward than do at present?
More will come forward than do at the moment. We are implementing the vast majority of what James Ewins recommended. He recommended, supported by Kevin Hyland, that there ought to be information meetings. It will now be a requirement that that will happen within 42 days. We are flexible on that, and if it needs to be sooner, we will look at that very carefully. The reality is that to qualify for this visa people will have to sit down with somebody who is independent—not from the Home Office or the Government—who will ask them if they understand what their rights are. These are unprecedented protections that have been put in place by the Government, alongside the Modern Slavery Act—we are leading the world in this area. I urge the noble Lord to think very carefully about the safety of people and the ability of the police to prosecute those who are carrying out this heinous abuse of the most vulnerable people in our country.
My Lords, I am extremely grateful for the support I have had from the Opposition Front Bench. It has been suggested that implementing the review is impractical. But I say to my noble friend Lord Green and to the Minister that that surely overlooks the point that changes of employer would have to be registered. The Government also rely on the national referral mechanism, but there have been serious criticisms of how that mechanism works in practice. This whole discussion shows how closely interrelated domestic and overseas issues have become.
I am sorry to interrupt, but I want to make a very important point. People need to understand that there have been criticisms about the national referral mechanism and that is why we asked Jeremy Oppenheim to undertake a review. He undertook a comprehensive review, which was discussed during the passage of the Modern Slavery Act and which we are now going through and implementing to ensure that it works in a way that is on the side of victims.
If it were not such an important issue, I would not intervene again, but I am afraid that it is not true that we have turned down two-thirds of those recommendations. We asked Jeremy Oppenheim to undertake that review and we have implemented the vast majority, if not all, of its recommendations. Some elements related to child trafficking advocates. There was a trial; it was not working as we wanted and we said that we would look at it and do something else. But that is not turning down two-thirds.
Consideration on Report adjourned.
Trade Union Political Funds and Political Party Funding
Motion to Take Note
My Lords, I am pleased to have the opportunity to open tonight’s debate on the report of the Select Committee on Trade Union Political Funds and Political Party Funding. I am grateful to the Government Chief Whip for scheduling it at very short notice.
Some of your Lordships may have noticed that I voted against the Motion in the name of the noble Baroness, Lady Smith of Basildon, to set up the Select Committee. I did so because I thought it would be impossible to conduct a meaningful inquiry in the timescales proposed. I hope that noble Lords will agree that, once again, I have been proved wrong.
In the course of our inquiry, we received oral testimony from 19 witnesses and 40 written submissions.
I also hope that the evidence as well as the conclusions of the committee will be of assistance to the House as it considers Clauses 10 and 11 of the Trade Union Bill on Report.
That I have been proved wrong on this is a tribute to my colleagues on the committee, who at very short notice worked intensively and flexibly throughout the inquiry and, more than that, showed a collegiate and constructive spirit which was so necessary if we were to make progress in the very short period that was available. It is somewhat remarkable that there were no votes in the committee and that, after lengthy discussions, the members agreed a report which was unanimous in all but one area—albeit a significant area, as I shall explain in due course.
None of this would have been possible without the outstanding work of the committee staff and Tom Wilson, the clerk to the committee, in particular. They worked against very tight deadlines, organising the written and oral evidence with great skill and preparing evidence for publication very quickly. They also produced a first draft of the report of high quality during the half-term recess. This gave us a firm foundation against which to have the final and decisive deliberations.
I should remind the House of the committee’s remit, which was,
“to consider the impact of clauses 10 and 11 of the Trade Union Bill in relation to the Committee on Standards in Public Life’s report, Political Party Finance: ending the big donor culture, and the necessity of urgent new legislation to balance those provisions with the other recommendations made in the Committee’s Report”.
We took the view that our first task should be to assess what the impact of Clauses 10 and 11 would be on the unions and how that would affect the Labour Party in turn. Both clauses concern the political funds that unions must establish if they wish to spend money on the furtherance of political objects. That includes both donations to political parties and spending on political campaigns. Out of the 163 listed unions in the UK, 25 have political funds; and of those, 15 are affiliated to the Labour Party.
Currently, most members of a union with a political fund pay a political levy into the fund unless they take the active decision to opt out of doing so. It is important to bear in mind that the political levy is a very small amount. The average is just over 9p per week or £4.84 per year. In 2013, 89% of members in unions with a political fund have not opted out and therefore were paying the levy.
Clause 10, as drafted, would require unions to move away from the current opt-out system and introduce an opt-in system. In other words, union members would pay the political levy only if they actively chose to do so. In attempting to assess the likely impact of Clause 10, we looked at the evidence of history, at what has happened in Northern Ireland, and we took evidence from behavioural experts. It may be worth saying a few words on each.
We thought that history might provide some clues because political funds have already been moved once from an opt-out system to an opt-in system, in 1927, and then back again in 1946. Although the available data have to be treated with a pinch of salt, they indicate that the move from an opt-out to an opt-in caused participation rates to fall by about one-third, and then the move back again caused the rates to increase by about 50%. Northern Ireland, which of course has a rather different political context, never restored the opt-out system after 1927 and its current participation rates under an opt-in system are about 28%.
The behavioural experts that we consulted gave us some powerful evidence about the impact of inertia on human behaviour. At the moment, the power of inertia benefits the unions because only 11% of their members make the effort to opt out of the political fund. Under the Government’s proposals, of course inertia would work against the unions. People have busy lives and their political levy is very small, so human nature means that it would be extremely difficult to persuade existing members to make an active choice about whether or not to opt in. Indeed, Dr David Halpern of the Behavioural Insights Team said that analogous situations led him to expect a fall of 20% to 30% in political fund participation rates.
In summary, the truth is that nobody can know what the impact of moving to opt-out would be in Great Britain at this particular time. However, the committee agreed that there could be a sizeable negative effect on participation rates. It is, of course, possible that those members who opt in could be asked to pay more, which might, to some degree, mitigate the financial impact.
The committee also agreed that the negative effect would be exacerbated by the particular details of Clause 10, which gives us a short transition period, does not allow opt-in by electronic means and requires opt-ins to be renewed every five years. Taking all of those factors into account, the unions themselves took a pessimistic view that the clause as currently drafted would result in participation rates being as low as 10% or even 5%. Although the committee was not convinced by those estimates, we did agree that the details of the scheme needed addressing and we were pleased at the Government’s apparent willingness to look again at those points.
The next question is whether the negative effect on political funds will have a knock-on effect in the funding of the Labour Party. We were told that out of the £22 million that Labour Party-affiliated trade unions raised in political funds in 2014, just under half, £10 million, was given to the Labour Party. The committee agreed that there would be an impact but the scale was uncertain. For example, unions might choose to give a larger slice of the political fund to the Labour Party and to spend less on other political campaigns. So there will not necessarily be a direct correlation between the impact on political fund participation rates and the impact on the Labour Party’s finances. But on balance the committee concluded that there would be a significant reduction in union payments to the Labour Party.
Before I talk further about party funding, I shall say a brief word about Clause 11, which would require unions to provide much more detail about their political expenditure to the Certification Officer, who oversees trade union administration. Although this clause was raised far less often than Clause 10 in the evidence we received, the committee agreed that, as presently drafted, it could be disproportionately burdensome on the unions. The clause would require any union that spends more than a total of £2,000 per year from its political fund to declare the recipient, the amount and the nature of every payment, no matter how small. I repeat: there is no de minimis. To take a striking example, it was put to us that in principle this clause, coupled with subsections (1) and (2) of the 1992 Act, will mean that a union will have to declare the reimbursement of a bus fare to one of its members who attends a Labour Party conference. The committee believes that this clause needs to be looked at again, and accordingly we propose that before the Bill completes its passage, the Government should consult the Certification Officer, who will also be significantly affected by the clause, and come back with revised proposals which better balance accountability and proportionality.
I turn now to the part of the committee’s remit dealing with the 2011 report of the Committee on Standards in Public Life. The remit raised the possibility of,
“the necessity of urgent new legislation”,
to balance Clauses 10 and 11,
“with the other recommendations made in the committee’s report”.
I must confess that the committee had a little difficulty with that wording even after reading it many times. The CSPL report did not address political funds at all. One of its recommendations concerned union affiliation fees to the Labour Party, but they are different. It is also clear that there is no cross-party agreement on the CSPL report and thus no prospect of urgent legislation.
The committee decided, however, that it would be useful and within the spirit of our remit to consider whether there is a convention or some lesser tradition that reform of political party funding should proceed by consensus. We concluded that while there is no firm convention, history shows that both of the main parties have acted with a degree of constraint and that consensus is desirable. There is a widespread view that no Government should use their majority unilaterally to inflict significant damage on the finances of opposition parties. With this in mind, we commended the CSPL’s general approach of seeking to maintain balance so that any package of reform would affect all major parties in a broadly proportionate and fair manner.
However, we have a dilemma. The Conservative Party made a manifesto commitment,
“to ensure that trade unions use a transparent opt-in process for union subscriptions”.
Yet, as I have explained, Clause 10 will certainly have an impact on the funding of one particular party, the Labour Party, and as it stands it is not part of a balanced package that might command a desirable consensus. This dilemma led us to try to seek a way forward which would allow the Government to fulfil their manifesto commitment while also mitigating the worst of the impact on the unions and the Labour Party.
We were agreed that one way of easing this dilemma would be to distinguish between the requirements for new members and those for existing members of trade unions. For new members, we were agreed that opt-in was the correct way forward. Across many different walks of life, such as financial services, in which I have a great deal of experience, it is increasingly recognised that people should be asked to exercise an active choice and that organisations should not rely on inertia. We have therefore recommended that, after a minimum transition period of 12 months, anyone joining a union with a political fund should pay the political levy only if they have actively chosen to do so.
We were also agreed that for members who are opted in, there should be no requirement to renew that decision at regular intervals, provided that they are reminded every year about their right to opt out. This would also be in line with the requirement of the Financial Conduct Authority for financial services. We have therefore suggested that the Certification Officer should issue a statutory code of practice specifying the minimum communications which unions must have with political fund contributors every year about their right to opt out and to monitor compliance with it. We were also agreed that it should be possible to opt in and opt out electronically, whether by email or on the internet, as well as on paper.
I now turn to the more difficult issue of the treatment of existing members. As I have said, we agreed that we should distinguish between existing members, many of whom have been paying into political funds for years, and new members who can be forced to make an active choice on their union membership form. Human nature means that it would be much harder for unions to persuade existing members to make an active choice as there is no effective trigger point. Large numbers are likely to ignore mailshots asking them to make this choice and repeated prompting is likely to be necessary. The fear is not of existing members choosing to opt out rather than to opt in, it is that they will simply make no choice at all. This raised two questions for the committee: whether and how quickly the opt-in system should be extended to existing political fund contributors as well as to new members, and whether this should be linked to progress on party funding reform.
Our deliberations boiled down to two options. One was that the opt-in system should be extended to existing members, but perhaps on a longer transition period than that for new members. This would recognise the problem of inertia and the likely difficulty of persuading existing members to make a choice, but still set a deadline for that choice to be made. A second option was that existing contributors should be considered as part of future talks on party funding reform and should not be included in this Bill. This was because it was feared that extending the opt-in to existing members would have a significant negative effect on union and Labour Party funding even with an extended transition period. Meanwhile, existing members will also be covered by the proposed statutory code of practice specifying the minimum communications which unions must have with political fund contributors every year about their right to opt out. Of course, the difference between these two approaches depends on the length of the extended transition period on the one hand, and the outcome and timing of talks on party funding on the other. A majority of the committee, including myself, on balance preferred the second option; namely, that extending the opt-in requirement to existing members should be considered only as part of wider cross-party talks on the reform of political party funding.
That brings me to my final point, and in some ways the most important recommendation of the report, as it also has a part to play in resolving our dilemma. The whole committee strongly believes that the Conservative, Labour and Liberal Democrat parties must give effect to their respective manifesto commitments on party funding reform. Accordingly, we urge the Government to take a lead by convening cross-party talks with a view to making a renewed and urgent effort to reach agreement. We cannot hope that this problem is going to go away; it will not. My fear is that until we solve it, the public are going to continue to mistrust political parties and the way that they are funded. I look forward to hearing what noble Lords have to say, and I beg to move.
My Lords, I think the House will recognise the very real contribution that has been made to the progress of the Bill by the work of the committee. I say that as someone who did not expect anything to come out of it at all. If I remember rightly, we voted strongly against the idea of it being set up in the first place. It has actually been encouraging to see the progress that has been made. The House owes a great debt to the noble Lord, Lord Burns, for the leadership and chairmanship he has given on this matter.
I simply make the very obvious point that the committee has, as I understand it, unanimously agreed that the principle no longer of inertia, but of opting in for new members is the right one and should be adopted. That can certainly be welcomed and I have no objection to the allowance of a year for the necessary procedures to be introduced. I make only that point, because we then move on to the more difficult question of the established members. I simply say that I would not rush that one. We need to think about it quite carefully. I take quite seriously the issue of party funding and whether this can be seen as the action of one party using its majority to abuse the situation of the other major party.
The interesting thing is that we would not be here if trade unions had been loyal to the undertakings given to me by the TUC. In a sense, the TUC was betrayed over this matter. I had the clearest assurances from the then right honourable Lionel Murray—Len Murray as we knew him, and later Lord Murray—with the full support of the unions, that the fullest arrangements would be made to ensure that all new members and all members of every union affiliated to the TUC would be given full information and advice, and be properly informed about what their rights were. As others have said, sadly this simply was not done. I accepted those assurances in good faith, which I said in reply to Mr Murray at the time on the basis of the undertakings that he had given in good faith to me, representing the Government. This is absolutely no criticism of him at all: he thought that he had a cast-iron agreement with the member unions of the TUC on the procedures that would be followed and they simply, sadly, were not. Thirty-two years later, here we are again.
If the noble Lord thinks that I am overdoing it I simply ask him to read again the letter that Mr Murray sent to me. The noble Lord was a deputy general secretary himself at the time, so he has no excuse for not knowing what was said in that letter, or for not knowing the circular that was sent out by the TUC to all the unions, to which they subscribed, and on the basis of which I then accepted that assurance. I invite any noble Lord here to read the correspondence and make their own judgment as to whether I am overegging it.
That is where we are now. I had not sought to see this introduced. I hoped, 32 years ago, that the matter had been resolved. Sadly, my acceptance of the assurance that I know was given in good faith by Mr Murray on behalf of the TUC simply was not honoured and respected by the vast majority of the unions. So new members—this covers virtually all the current union members, since it has been going on for 32 years—were not made aware of the rights that they had, which they should have been, and on whose behalf the TUC had given me those clear undertakings.
My Lords, obviously I accept the noble Lord’s recollection of what happened in 1984 and of the deal that was done. He will be aware that the committee had mixed information and reports on exactly what the unions were doing, and that the evidence from the Government was much challenged by the unions and by independent observers on whether the unions were following the spirit of that agreement. More importantly, over the 32 years, no Minister of any Government—the majority of whom were not Labour—has ever raised with the TUC the fact that there was a serious breach of that understanding and has never proposed, until the Bill appeared before the House, that we should change the situation again.
The noble Lord makes a very interesting point. I do not know where the Government were at that time. He is absolutely right that it got completely neglected. I went off to Northern Ireland and did not follow it through. Until the noble Lord, Lord Monks, produced the correspondence I had forgotten its existence. I am quite frank about that.
The simple point I want to make, having thought that nothing would come out of the committee, is that we now have a way forward, and that the opt-in for new members should be properly communicated and in legislation. I note that the noble Lords, Lord Burns and Lord Tyler, and the noble Earl, Lord Kinnoull, have tabled an amendment that is currently in the Printed Paper Office, setting out the point of opting in for new members. It is a very helpful amendment, which I have read and noble Lords will be able to read. On that basis, we have made an important start. On the difficult point of established members, we should see how we get on with the fi